Madhya Pradesh High Court
Smt.Shipra Bai & Anr. vs Smt.Ghisiya Bai & Ors. on 15 March, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
FIRST APPEAL No. 74/1998
BETWEEN:-
1. SMT. SHIPRABAI (DELETED)
2. SMT. GITABAI, W/O HARIOM
MANDLOI, AGED ABOUT 38 YEARS,
OCCUPATION HOUSE WIFE, R/O 55,
SHOKA GARDEN BHOPAL (M.P)
......APPELLANTS
(MRS. SANJANA SAHNI and SHRI SAKET MALIK - ADVOCATES)
AND
1. SMT. GHISIYABAI (NOW DEAD THROUGH
HER LRS)
1A. VINOD YADAV, AGED ABOUT 30 YEARS, S/O
BANSHILAL YADAV
1B. BANSAHILAL YADAV, AGED ABOUT 65
YEARS, S/O MOOLCHAND YADAV.
1C. MOTILAL YADAV (DELETED)
[ALL R/O BISANKHEDA WARD NO.1 NAGAR
PANCHAYAT OBEDULLAGANJ TAHSIL
GOUHARGANJ DISTRICT RAISEN (M.P)]
2. KAMAL SINGH YADAV, S/O MOOLCHAND
YADAV, OCCUPATION - SERVICE, R/O
KUMHARPURA BEHIND PANCHSHEEL
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TALKIES, JINSI JAHANGIRABAD BHOPAL
(M.P)
3. RAGHUVIR, S/O KARAN SINGH, AGED
ABOUT 30 YEARS, CULTIVATOR, R/O
VILLAGE BERSIYA TAHSIL GOHARGANJ
DISTRICT RAISEN (M.P)
4. STATE OF MADHYA PRADESH THROUGH
COLLECTOR, RAISEN (M.P)
5. CHARAN SINGH, S/O KARAN SINGH, AGED
ABOUT 29 YEARS, R/O VILLAGE BERSIYA
TAHSIL GOHARGANJ DISTRICT RAISEN
(M.P)
........RESPONDENTS
(BY SHRI R. P KHARE - ADVOCATE)
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Reserved on : 08.02.2024
Pronounced on : 15.03.2024
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This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, the Court pronounced the
following:
JUDGMENT
This first appeal has been preferred by the defendants 1-2/appellants challenging judgment and decree dated 09.01.1998 passed by First Additional District Judge, Raisen, in Civil Suit No.10-A/1992 whereby original plaintiff-Smt. Ghisiyabai/ respondent 1's suit for
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declaration of title, for declaring sale deed(s) not binding on plaintiff, for cancellation of compromise agreement, for restoration of possession as well as for permanent injunction has been decreed partly in respect of house and land Khasra No. 76 & 80.
2. Original respondent 1/plaintiff-Smt.Ghisiyabai (now dead, through alleged LRs) instituted a suit with the allegations that suit property i.e. a house, agriculture land khasra no. 80 area 4.56 acres; 76 area 7.37 acres; 77 area 10 acres; and 78 area 10 acres belonged to Ghasiram (died on 04.03.1987) and plaintiff is only successor being his wife. It is alleged that because no issue was born from wedlock of Ghasiram and plaintiff- Ghisiya Bai, therefore, with the consent of plaintiff, Ghasiram brought Kshipra Bai along with her daughter Geeta Bai and kept her with him as his wife.
3. In the year 1970-71 Ghasiram transferred land of khasra no. 77 area 10 acres to the plaintiff and khasra no. 78 area 10 acres was given to defendant 1-Kshiprabai. After death of Ghasiram the land of khasra no. 76 and 80 was mutated in the name of plaintiff on 26.10.1987 vide case no. 45A-6/86-87. As such, land khasra no. 76, 77 and 80 came in the name/ownership of plaintiff. In the month of November'1980 the defendant no. 2-Geetabai took defendant 1 with her and now defendant 1
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is residing with defendant 2, since thereafter the defendant 1 had dispossessed the plaintiff from survey no. 78 area 10 acres and sold it to defendants 4 & 6 (5 acres to Raghuvir Singh and 5 acres to Charan Singh) vide regd. sale deeds dtd. 19.04.1991 (Ex.P-6c) and 27.04.1991 (Ex.P- 7c), which are not binding on the plaintiff. Thereafter, the defendants 1-2 through Shri Tarachand, Advocate challenged order of plaintiff's mutation dtd. 26.10.1987 by filing appeal before SDO. The defendant 3 Kamal Singh also filed appeal against the said order of mutation. The plaintiff engaged Shri Narayan Singh, Advocate in mutation case. Later on Tarachand misrepresented the plaintiff and got signed some blank papers. It is alleged that no will has been executed by Ghasiram in favour of defendants 2 & 3. It is alleged that defendant 3-Kamal Singh, who is nephew (bhanja) of Ghasiram (sister's son), along with Geetabai's husband Hariom, came to plaintiff and assured that they will not demand property from plaintiff and got signed some papers and got prepared a compromise/consent deed (dtd. 13.05.1991 /Ex.P-20 or D-3) on the basis of which a compromise was filed before SDO, but upon objection (dtd. 11.07.1991 /Ex.P-19) the same was not acted upon. It is also alleged that again compromise was arrived at between the parties but contrary to agreed terms and conditions, compromise agreement/deed dtd.
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17.07.1991 (Ex.P/18) (notarized on 21.07.1991) was prepared which was produced before SDO along with application under Order 23 Rule 3 CPC (Ex.P/17) on 22.07.1991 and after recording statements (Ex.P/21- Ghisiyabai, P/22-Kamal Singh & P/23-Geetabai) of parties, SDO passed final order dtd. 22.07.1991 (Ex.P/9), whereby name of Geetabai (over khasra no. 80) and of Kamal Singh (over khasra no. 76) was directed to be recorded. It is alleged that compromise agreement dtd. 17.07.1991 is a fraudulent document, which is not binding on the plaintiff. It is also alleged that compromise agreement dtd. 17.07.1991 creates right in favour of defendants, therefore, without registration it is illegal and cannot be given effect. Mutation of defendants 2-3 being based on compromise, does not confer any right on them. It is alleged that only the plaintiff is entitled to receive the property left by Ghasiram. On inter alia allegations the suit was filed.
4. The defendants 1-2 appeared and filed joint written statement denying the plaint allegations. Claiming themselves to be legal wife and daughter of Ghasiram, it is contended that Ghasiram gave 10 acres land to plaintiff, 10 acres land to defendant 1, land of khasra no. 80 area 4.56 acres to defendant 2-Geetabai and khasra no. 76 area 7.37 acres was given to defendant 3- Kamal Singh and their names were mutated.
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Accordingly the defendants 1-3 are in possession of the land. It is contended that Kshipra Bai is entitled to succeed the property of Ghasiram having equal share and a valid/legal compromise was arrived at amongst the plaintiff and defendants 1-3 and plaintiff-Ghisiyabai affixed her thumb impression knowingly, which is binding on her and she cannot be permitted to resile from the compromise. On inter alia contentions the suit was prayed to be dismissed.
5. Defendant 3 also filed his written statement and contended that Ghasiram received 31.93 acres land from his father and defendant 3 is nephew/bhanja (sister's son) of Ghasiram and according to will dtd. 26.11.1982 the land was given to defendants and due to such arrangement Ghasiram's sister Rudhiyabai @ Raudrabai (mother of defendant 3) stopped demanding the land of her share. He contended that compromise was arrived at legally in the appeal filed before SDO, hence it did not require registration and the suit is not maintainable in view of Order 23 Rule 3-A CPC. Claiming himself to be in possession and taking objection of non-joinder of necessary parties, including maintainability of suit, the same was prayed to be dismissed.
6. On the basis of pleadings of the parties, trial Court framed as many as 17 issues and recorded evidence of the parties. In support of her case,
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the plaintiff examined herself-Ghisiyabai (PW-1) and submitted documentary evidence (Ex. P-1 to P-28). Similarly, the defendants 1-2 examined Hariom Singh Mandloi (DW-1), whereas Kamal Singh (DW-2), Anil Kumar (DW-3), Nandlal (DW-4) were examined on behalf of defendant 3 and submitted documentary evidence (Ex. D-1 to D-44).
7. Trial Court, after hearing the parties and upon due consideration of material available on record, dismissed the suit partly vide impugned judgment & decree dtd. 09.01.1998, and while deciding issue no.1, it clearly held the defendant 1 to be legal wife of Ghasiram as well as owner/bhumiswami of the land Khasra No.78 and held the plaintiff to be bhumiswami/owner of land khasra no. 76, 77 and 80. However, beyond the relief claimed in the suit, held the order passed by SDO on the basis of compromise agreement/deed dated 17.07.1991 not binding on the plaintiff and consequently held the plaintiff to be owner of land khasra Nos.76 & 80 and entitled for possession over it.
8. Against the aforesaid judgment and decree dtd. 09.01.1998, instant first appeal has been filed by defendants 1-2 Kshipra Bai (now dead) & Geeta Bai, whereas cross-objection has been filed by respondent 1/plaintiff in relation to adverse findings with the prayer of decreeing the suit in its entirety.
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9. Learned counsel for the appellants/defendants 1-2 submits that in the light of admissions based findings recorded on issue no.1 to the effect that Kshipra Bai is legal wife of Ghasiram, there was no reason to decree the civil suit even in respect of land Khasra No.76 & 80. He submits that compromise was arrived at legally to which the plaintiff Ghisiya Bai consented by affixing her thumb impression and now she cannot be permitted to resile. He further submits that this is the plaintiff, with whose consent Ghasiram brought Kshipra Bai along with her daughter Geeta Bai to his home, where both the wives resided together with Ghasiram and even after death of Ghasiram they resided together for more than two years and with this background the compromise was arrived at and as such the plaintiff is not owner of the suit property. With these submissions he prays for setting aside the impugned judgment and decree and prays for dismissal of suit in its entirety.
10. Learned counsel appearing for the respondent 1/plaintiff submits that in the lifetime of Ghisiya Bai, the defendant 1-Kshipra Bai, who was brought home in the year 1960, does not get any right in the property left by Ghasiram. He submits that trial Court has rightly decreed the suit in respect of land Khasra No. 76 & 80 and she is not entitled even for the land of Khasra No.78, regarding which suit has been dismissed. By
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pressing pending cross objection, learned counsel submits that findings recorded by trial Court on issue No.1 regarding status of defendant 1- Kshiprabai to be legal wife, are not sustainable and liable to be set aside and by dismissing the appeal, the suit deserves to be decreed in its entirety.
11. In support of his submissions, learned counsel for the respondent 1 placed reliance on decisions of Hon'ble Supreme Court in the case of State of Himachal Pradesh Vs. Keshav Ram and others (1996) 11 SCC 257; Municipal Corporation Gwalior vs. Puran Singh alias Puran Chand and others AIR 2014 SC 2665; Suraj Lamp & Industries Pvt. Ltd vs. State of Haryana AIR 2012 SC 206; Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and Another (1988) 1 SCC 530; Suraj lamp & Industries (P) Ltd. Thru DIR vs. State of Haryana & Anr. AIR 2009 SC 3077 & decision given by Himachal Pradesh High Court in the case of Smt. Santosh Kumari vs. Surjit Singh AIR 1990 HP 77.
12. Heard learned counsel for the parties and perused the record.
13. Following points for determination are arising in the instant first appeal for consideration of this Court :-
(i) Whether without challenge to final order dtd. 22.07.1991 (Ex.P/9) passed by SDO on the joint application under Order 23 Rule 3 CPC, trial Court has committed illegality in holding it to be not binding on the plaintiff ?
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(ii) Whether the suit filed on 17.08.1992 being barred by Article 100 of the Limitation Act, trial Court has committed illegality in decreeing the suit in respect of order of SDO dtd. 22.07.1991 ?
(iii) Whether the plaintiff has been able to prove the plea of fraud taken by her in the plaint ?
14. The plaintiff has, in para 1 of the plaint, clearly stated that Ghasiram with the consent of plaintiff-Ghisiyabai brought the defendant 1-Kshipra Bai along with her daughter Geeta Bai, to his home and thereafter, the plaintiff and defendant 1 both resided together with Ghasiram as his wives. It is contended that her husband transferred 10 acres land to the plaintiff and 10 acres land was given to Kshipra Bai and there is custom in their society to keep another/second wife. Taking into consideration clear pleadings made in plaint and unambiguous admissions made by plaintiff-Ghisiyabai in paragraph 1 and 8 of her statement, trial Court while deciding issue No.1, held the defendant 1- Kshipra Bai to be a legal wife of Ghasiram and dismissed the suit in respect of land Khasra No.78 holding the defendant 1 to be owner of it.
15. Undisputedly, Geeta Bai is daughter of Kshipra Bai. Upon due consideration of evidence led by the parties and on the basis of admissions made by plaintiff herself, trial Court has concluded that Kshiprabai is wife of Ghasiram and is entitled to succeed the property i.e.
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the land of Khasra no. 78. In any case, when Kshiprabai has been found to be wife of Ghasiram and Geetabai is daughter of Kshiprabai, then the suit property which Ghisiyabai received from Ghasiram, would devolve upon legal heirs of Ghasiram i.e. on Kshiprabai and after death of Kshiprabai, would devolve upon Geetabai.
16. While deciding issue no. 2 & 3 trial Court has on its wrong assumption held that no compromise was arrived at among the parties, whereas the plaintiff has admitted that she affixed her thumb impression on the compromise. With a view to prove plea of fraud, the plaintiff has not examined any other independent witness and in support of plaint averments, has examined herself only. Even testimony of plaintiff does not prove averments made by her in plaint. It is well settled that plea of fraud should be clearly pleaded and proved by cogent and reliable evidence, otherwise the same cannot be said to be proved.
17. Entire case of the plaintiff is based on issue no. 2, 3, 4(a),(b), 8(a) & (b), which have been tried to be answered by trial Court in paragraphs 18 to 37. Said issues have been framed in relation to fraud allegedly committed by defendants 2 & 3 with the help of Advocate Tarachand Gupta on 11.01.1991 and thereafter on 13.05.1991. For proving the said fact, the plaintiff could have examined her Advocate Narayan, her sister's
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son Dashrath and other witnesses, who made the plaintiff conversant with the alleged fraud and except her, no other witness has been examined. So far as question of affixing thumb impression on blank papers is concerned, the plaintiff herself has demolished her case by admitting in para 4 & 5 of her statement.
18. The compromise agreement/deed dated 17.07.1991 is a document whereby ownership of family members of original owner/bhumiswami Ghasiram of the suit land has been acknowledged and not of the strangers to the family. Although, on one hand the Court has accepted the compromise to have arrived at amongst the parties but on the other hand has discarded the same for want of registration. The document (Ex.P/18) coupled with the order dtd. 22.07.1991 (Ex.P/9) does not require registration at all.
19. It is an admitted fact that parties signed the joint application which was filed before SDO along with compromise agreement/deed dtd. 17.07.1991, thereupon statements of parties were recorded and all the parties to the compromise signed their statements, which were identified by their respective counsel(s), hence it can be said that the compromise was a valid compromise and on mere saying of the plaintiff it to be a fraudulent settlement, cannot be ignored or discarded.
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20. Section 43 of the M.P. Land Revenue Code, 1959 provides that "Unless otherwise expressly provided in this Code, the procedure laid down in the Code of Civil Procedure, 1908 (V of 1908) shall, so far as may be, be followed in all proceedings under the Code." Meaning thereby the provisions of Order 23 Rule 3 CPC are fully applicable to the revenue courts and compromise was arrived at rightly among the parties in accordance with the procedure prescribed under Order 23 Rule 3 CPC.
21. In the said regard, Hon'ble Supreme Court has in the case of R. Janakiammal vs. S.K. Kumarasamy and others, (2021) 9 SCC 114, held as under :
"53. The judgments of Pushpa Devi(supra) as well as Banwari Lal (supra) were re- ferred to and relied by this Court. This Court held that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question.
54. In subsequent judgment, Triloki Nath Singh Vs. Anirudh Singh (Dead) Through Legal Representatives and Ors., (2020) 6 SCC 629, this Court again referring to earlier judgments reiterated the same preposition, i.e., the only remedy available to a party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and separate suit is not maintainable. In paragraphs 17 and 18, following has been laid down:
"17. By introducing the amendment to the Civil Procedure Code (Amend- ment) 1976 w.e.f. 121977, the legislature has brought into force Order 23 Rule 3A, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all.
18. Finality of decisions is an underlying principle of all adjudicating forums.
Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to
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avoid multiplicity of litigation and permit parties to amicably come to a set- tlement which is lawful, is in writing and a voluntary act on the part of the parties. The court can be instrumental in having an agreed compromise ef- fected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be ques- tioned on an application under the proviso to Order 23 Rule 3 CPC before the court."
55. The above judgments contain a clear ratio that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which re- corded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. In Suit No.1101 of 1987, the plaintiff prayed for a declar- ation declaring that the decree passed in O.S. No. 37 of 1984 is sham and nominal, ul- travires, collusive, unsustainable invalid, unenforceable and not binding on the plaintiffs. We have noted the grounds as contained in the plaint to challenge the con- sent decree in foregoing paragraphs from which it is clear that the compromise, which was recorded on 06.08.1984 was sought to be termed as not lawful, i.e., void or void- able. On the basis of grounds which have been taken by the plaintiff in Suit No.1101 of 1987, the only remedy available to the plaintiff was to approach the court in the same case and satisfy the court that compromise was not lawful. Rule 3A was spe- cifically added by the amendment to bar separate suit to challenge the compromise decree which according to legislative intent to arrest the multiplicity of proceedings. We, thus, do not find any error in the judgment of trial court and High Court holding that Suit No.1101 of 1987 was barred under Order XXIII Rule 3A."
22. Further a coordinate Bench of Rajsthan High Court in the case of Smt. Rukma & Ors. vs. Deva Ram 2010 SCC OnLine Raj 3166, has held as under :
"In the case of Gopal Lal (supra) this Court has clearly held that in case valid- ity or veracity of a compromise needs to be challenged, the same should be done before the Court where the compromise was submitted. In the present case, the compromise was submitted before the learned SDO. Therefore, the suit for declaring the compromise as void and for setting it aside should have been filed before the learned SDO and not before the Civil Court."
23. In the instant case annexing the compromise agreement dtd. 17.07.1991 (Ex.P/18), compromise application under order 23 rule 3 CPC (Ex.P/17) duly/jointly signed by the parties, was filed before SDO on 22.07.1991, thereupon statements of plaintiff-Ghisiyabai (Ex.P/21);
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defendant 3-Kamal Singh (Ex.P/22); and defendant 2-Geetabai (Ex.P/23) were recorded on 22.07.1991 and then only final order dtd. 22.07.1991 (Ex.P/9) was passed by SDO. Because, the plaintiff was conversant with all the proceedings, as she has admitted in para 15 and 16 of her statement, therefore, it was for the plaintiff to challenge the compromise order dtd. 22.07.1991 (Ex.P/9) before the SDO itself, but despite knowledge of all the aforesaid, instant suit had been instituted on 17.08.1992 i.e. after a period of more than one year, whereas limitation to challenge such order is only one year under Article 100 of the Limitation Act, 1963. It is pertinent to mention here that, although, some pleadings criticizing the said compromise have been made in plaint paragraphs 14,15,16& 17, but no relief has been claimed in respect of the final order of compromise passed by SDO on 22.07.1991.
24. While deciding issue no. 15-A trial Court has just contrary to the evidence held that the defendants have taken forcible possession over the land during pendency of the suit, whereas no such statement has been given by the plaintiff. Even no whisper is there in the statement of plaintiff, about her dispossession during pendency of suit. On the contrary, the defendants have been in possession since prior to filing of civil suit. In paragraph 6 of her statement, the plaintiff says that when she
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returned from Raisen (i.e. after signing of the compromise), Hariom and Geetabai took possession over the land. As such, the findings being perverse and contrary to the evidence are not sustainable.
25. Although, cross objection has been filed on behalf of the respondent 1 challenging the finding with regard to status of Kshiprabai to be legal wife of Ghasiram, but in the light of admissions of the plaintiff-Ghisiyabai in the plaint and her oral testimony, the plaintiff has no right to challenge the finding recorded by trial Court on issue no. 1(a), with whose consent Ghasiram brought Kshiprabai along with her daughter Geetabai to his home, where Kshiprabai and Geetabai resided for a period of more than 32 years without any dispute.
26. So far as decision on the issue no. 1(b) is concerned, trial Court has taken into consideration the plaint averments and oral testimony of the plaintiff made in para 2 and 11 of her statement, to come to a conclusion that husband Ghasiram in his life time, gave the land of khasra no. 78 to Kshiprabai and khasra no.77 to the plaintiff Ghisiyabai. It is well settled that at the same time one cannot approbate and reprobate. It is pertinent to mention here that Kshiprabai has already sold the land of khasra no. 78 on 19.04.1991 and 27.04.1991 in favour of defendant 4-Raghuveer and defendant 6-Charan Singh.
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27. Resultantly, instant first appeal succeeds and is allowed and cross objection filed by the respondent 1 fails and is hereby dismissed. Resultantly, the suit stands dismissed with no order as to the costs.
28. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL) JUDGE SN Digitally signed by SATTYENDAR NAGDEVE Date: 2024.03.19 17:33:26 +05'30'