Gauhati High Court
Hemoram Saikia vs Loboram Saikia on 11 February, 2000
JUDGMENT J.N. Sarma, J.
1. The following are the substantial questions of law:
(i) Whether the suit is barred under Order 23 of the CPC in view of the compromise made in 31.7.1975 in T.S. No. 35/74 ?
(ii) Whether the Doctrine of Estoppel is applicable in the facts and circumstances of the case ?
2. This is an appeal by the defendant. The plaintiff brought a suit for declaration of title and recovery of has possession with regard to 3B.1K.7L of land in the court of Learned Munsiff at Jorhat and that was registered as F.S. No. 21/87. There was also a claim for mesne profit for an amount of Rs. 2700. The case of the plaintiff was that earlier the plaintiff filed a Title Suit being Title Suit No. 35/74 before the Learned Munsiff at Jorhat with regard to 6B.1K.7L of land and that suit was compromised between the plaintiff and the defendant No. 1 and in terms of the compromise decree the defendant No. 1 agreed to give up the possession of 3B.IK.7L of land retaining 3B of land of the southern side. In terms of the compromise decree an execution was levied being Title Execution under 45/75 and warrant of delivery of possession was issued and the plaintiff was put in possession was issued and the plaintiff was put in possession of this three Bigha IK and 7L of land by executing the decree. Thereafter, the plaintiff was in possession the land but the defendant Nos. 1, 2 and 3 who are father and sons dispossessed the plaintiff from this land. There was a criminal prosecution for tress pass as against the defendant but the defendants were acquitted in that prosecution. There was a revision before this court and this court dismissed the criminal revision. Thereafter, this suit was filed on 10.4.1987 with the reliefs as indicated above.
3. A written statement was filed by the defendant and in the written statement in paragraph 4 they take up the plea of res judicata. The case of the defendant was that these defendants are in possession of the land on their own right and they have acquired right, title and interest to the land by adverse possession. The claim for mesne profit was denied by the defendant claiming that they being in possession of the land in rightful manner, the question of granting mesne profit does not arise. The trial court framed as main as 4 issues :
(i) Cause of action,
(ii) Limitation and res judicata.
(iii) Adverse possession.
(iv) Whether the plaintiff is entitled to decree as prayed for ?
4. With regard to issue No. 2 the Learned Munsiff found that the compromise decree cannot be res judicata. Even in the revision before this court i.e., criminal revision No. 989/76 wherein he was acquitted and this court directed the defendant to get his land properly demarcated and allow the complainant/plaintiff to possess or continue the possession of land in peaceful manner in terms of the compromise decree. The Learned Munsiff on consideration of the materials on record came to the categorical finding that in granting decree the plaintiff was put in possession and thereafter he was dispossessed from the land. Accordingly, the suit as decreed. There was an appeal being Title Appeal No. 65/89 before the Learned Asstt. District Judge at Jorhat and the appeal was also dismissed.
5. Regarding first substantial question of law formulated. This aspect of the matter regarding consent decree came up for consideration before the Apex Court in the following cases :
(i) AIR 1954 SC Page 352 (Shankar Sitaram Sontakke and Anr. v. Balkrishna Sitaram Sontakke and Ors.) wherein in paragraph 9 the supreme Court pointed out as follows :
"A consent decree is as binding upon the parties thereto as a decree passed by invitum. If the compromise is not vitiated by fraud, mis-representation, mis-understanding or mistake, the decree passed thereon has the binding force of 'res judicata' and the same cannot be reopened by filing a fresh suit."
(ii) AIR 1967 SC Page 591 (Pulvarthi Venkata Subba Rao and Ors. v. Valluri Jagannadha Rao (deceased) by his heirs and legal representative and Ors.) wherein the Supreme Court pointed out as follows :
"A compromise decree is not a decision by the court. It is the acceptance by the Court of something to which the parties has agreed. A compromise decree merely sets the seal of the court on the agreement of the parties. The court does not decide anything. Nor can it be said that a decision of the Court was implicit in it. Only a decision by the Court can be res judicata, whether statutory under Section 11 of the Code of Civil Procedure or constructive as a matter of public policy on which the entire doctrine rests. Such a decree cannot strictly be regarded as decision on a matter which was heard and finally decided and cannot operate as res judicata, but such a decree might create an estoppel by conduct between the parties and that being the position, that matter again cannot be re-opened by the parties."
(iii) 1956 SC Page 346 (Sailendra Narayan Bhanja Deo v. The State of Orissa) wherein the Supreme Court pointed out that a judgment by consent or default is as effective an estippel between the parties as a judgment whereby the court exercises its mind on a contested case.
6. The Lower appellate court on the decision of the Apex Court rightly held that the earlier compromise decree shall be binding between the parties by way of estoppel and accordingly the Lower Appellate Court dismissed the appeal. I do not find any other substantial question of law involved in this appeal. Accordingly, this Second Appeal shall stand dismissed. Stay order passed earlier shall stand vacated.
7. I have heard Sri B.N. Sarma, learned Advocate for the appellant and Smt. P. Bhattachargee, learned Advocate for the respondent.