Punjab-Haryana High Court
Manjeet Kaur And Ors vs Prem Devi And Ors on 13 March, 2019
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
RA-RS-75-C-2006 (O&M) in -1-
RSA No.4576 of 2003
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
105
RA-RS-75-C-2006 (O&M) in
RSA No.4576 of 2003
Date of decision: 13.03.2019
Manjeet Kaur and others ...... Appellants
Versus
Prem Devi and others ...... Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Manoj Swarup, Advocate and
Mr. Nitin Jain, Advocate
for the review-applicants-respondents No.4 to 6.
Mr. Sanjeev Sharma, Sr. Advocate with
Mr. Vikram Dhakla, Advocate and
Ms. Aarushi Jain, Advocate
for respondent No.12 (in CM-3316-C-2019).
*****
ANIL KSHETARPAL, J.
CM-16396-C-2018 Prayer in the application is for impleading legal heirs of respondents No.3, 4, 5 and 6.
Application is allowed subject to just exceptions. The legal heirs of respondents No.3, 4, 5 and 6 as mentioned in the application are ordered to be brought on record for the purpose of defending the appeal only. CM-16397-C-2018 Prayer in the application is for impleading the applicants as respondents No.7 to 12 in the review application.
Application is allowed.
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RSA No.4576 of 2003
CM-16398-C-2018
Prayer in the application is for amending the review application. Application is allowed.
Main Case Question which needs consideration in this petition seeking review of judgment and decree dated 26.09.2006 passed on the basis of compromise between plaintiffs No.1 to 4 and defendants No.1 to 3 is whether such order is liable to be reviewed at the behest of legal heirs of defendant No.4 (who claims to be tenant as well as agreement to sell holder from defendants No.1 to 3) particularly when legal heirs of defendant No.4 are alleged to have signed an affidavit acknowledging defendant No.12 to be owner of the property while undertaking to withdraw all cases pertaining to the property in dispute.
Some facts are required to be noticed. Khushi Ram was owner of the property who bequeathed the property measuring 176 kanals 12 marlas in favour of late Smt. Rukmani Bai. Khushi Ram expired in the year 1952. Bhoj Raj, nephew of late Sh. Khushi Ram filed a civil suit No.276 of 1952 challenging the Will dated 15.09.1951. During the pendency of the aforesaid suit filed by Bhoj Raj, compromise was arrived at between Rukmani Bai and Bhoj Raj and it was settled that Rukmani Bai would have only life interest in the property received from Khushi Ram through the bequest. Rukmani Bai died on 04.09.1991. The heirs of Bhoj Raj i.e. plaintiffs No.1 to 4 filed a civil suit for declaration and permanent injunction claiming to be owner of the property in dispute and challenged sanction of mutation of the land in favour of defendants No.1 to 4. In this suit, Prem Chand was impleaded as defendant No.4 (review-applicant) who was in possession of the property as 2 of 10 ::: Downloaded on - 25-03-2019 00:17:08 ::: RA-RS-75-C-2006 (O&M) in -3- RSA No.4576 of 2003 tenant. The only relief sought against defendant No.4 was directing him to pay further rent to plaintiffs No.1 to 4, the heirs of Bhoj Raj.
Defendants No.1 to 3, heirs of Rukmani Bai is alleged to have entered into an agreement to sell the property in dispute in favour of defendant No.4 and received a sum of Rs.7,00,000/- as earnest money. Defendant No.4 filed a civil suit seeking specific performance of the agreement to sell against defendants No.1 to 3 on 17.12.1996. The suit filed by plaintiffs No.1 to 4, heirs of Bhoj Raj was dismissed by the trial Court vide judgment and decree dated 31.03.2001 while returning a finding that late Smt. Rukmani Bai became full owner of the property in terms of provisions of Section 14(1) of the Hindu Succession Act, 1956. The appeal against the aforesaid judgment and decree was also dismissed on 01.02.2003. The plaintiffs filed regular second appeal before the Court and status-quo was ordered by the Court. Initially, defendants No.1 to 3 (heirs of Rukmani Bai) entered into a compromise with defendant No.4 to the effect that if the ultimate decision of the High Court goes in favour of defendants No.1 to 3, they shall get the sale deed registered in the name of defendant No.4. Defendants No.1 to 3 had given Power of Attorney in favour of defendant No.4.
Thereafter, plaintiffs No.1 to 4 and defendants No.1 to 3 entered into a compromise dated 24.09.2006 in writing and wherein defendants No.1 to 3 conceded the claim of plaintiffs No.1 to 4. The High Court pursuant to the aforesaid compromise disposed of the appeal vide judgment and decree dated 26.09.2006. It will be noted that defendant No.4 or his legal heirs were not party to the compromise arrived at between plaintiffs No.1 to 4 on the one hand and defendants No.1 to 3 on the other hand. Defendant No.4 had filed a 3 of 10 ::: Downloaded on - 25-03-2019 00:17:08 ::: RA-RS-75-C-2006 (O&M) in -4- RSA No.4576 of 2003 review application. During the pendency of the review application, some of the plaintiffs sold the land measuring 148 kanals 8 marlas to JRM Steel Pvt. Ltd. for a sum of Rs.1,11,30,000/-. The review application was dismissed by the High Court on 29.01.2007. The Civil Appeal was filed before the Hon'ble Supreme Court against the judgment and decree dated 26.09.2006 as well as order passed by the Court dismissing the review application dated 29.01.2007. Some of the plaintiffs further sold the land measuring 26 kanals 4 marlas to Ishwar Chand, Shiv Narain and Ghanshyam Dass. JRM Steel Pvt. Ltd. also sold the land measuring 68 kanals in favour of Santosh for a sale consideration of Rs.1,02,00,000/-. Thereafter, JRM Steel Pvt. Ltd. and Santosh Kumar sold the land measuring 164 kanals and 12 marlas to Bimal Kumar Vij i.e. respondent No.12 for a sale consideration of Rs.2,22,60,000/-. JRM Steel Pvt. Ltd. and Santosh once again sold the land measuring 26 kanals 4 marlas to respondent No.12. It is the case of respondent No.12 that legal heirs of defendant No.4 signed an affidavit acknowledging Bimal Kumar Vij-respondent No.12 as owner of the property in dispute and the legal heirs undertook to withdraw all the cases pertaining to property in dispute from all Courts and offices. All these subsequent vendees noticed above were impleaded parties before the Hon'ble Supreme Court. Vide order dated 10.08.2018, the Hon'ble Supreme Court has remitted the matter back to this Court to decide the matter afresh.
This Court has heard learned counsel for the parties at length and with their able assistance gone through the order passed by the Hon'ble Supreme Court.
Learned counsel appearing for the review-applicant has submitted that applicants i.e. legal heirs of defendant No.4 were not party to 4 of 10 ::: Downloaded on - 25-03-2019 00:17:08 ::: RA-RS-75-C-2006 (O&M) in -5- RSA No.4576 of 2003 the compromise and therefore, there cannot be any compromise between some of the parties to the litigation. He further submitted that the suit filed by the plaintiffs for specific performance of the agreement to sell is now a dead letter because defendants No.1 to 3 who had entered into an agreement to sell have lost their ownership. He submitted that the judgment and decree which has been passed by this Court on the basis of compromise results in reversing the judgment of the Courts below declaring legal heirs of Rukmani Bai to be owner. He has further submitted that repeated attempts were made by the respondents to suffocate the rights of the applicants herein. He further submitted that the compromise between plaintiffs No.1 to 4 and defendants No.1 to 3 is against the public policy. He further drew attention of the Court to the conduct of plaintiffs No.1 to 4 and defendants No.1 to 3. In the last, he submitted that purchasers pendente lite have no right to contest.
On the other hand, learned senior counsel appearing for the respondent No.12 has submitted that in view of the affidavit of legal heirs of defendant No.4, the review application does not survive. He further submitted that the compromise between some of the parties is permissible and such compromise would not affect the rights of legal heirs of defendant No.4. He drew attention of the Court to the recent judgment passed by the Court while deciding a bunch of cases-main judgment written in RSA No.18 of 1996, decided on 17.01.2019 titled 'Surinder Singh Sibia Vs. Smt. Jaswant Kaur and others'.
This Court has considered the submissions of learned counsel for the parties and with their able assistance gone through the paper book.
In the considered view of this Court, it is permissible for some of the parties to enter into a compromise and resolve their dispute by settlement.
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Of course, such compromise would not in any way adversely affect the rights of the party who is not signatory to the compromise deed/settlement. The detail deliberations have been made in the case of Surinder Singh Sibia (supra) and therefore, need no further elaboration. Learned counsel appearing for the review-applicant has drawn attention of the Court to the judgment passed by the Hon'ble Supreme Court in the case of Arjan Singh Vs. Punit Ahluwalia and others, (2008) 8 SCC 348. On careful reading of the aforesaid judgment, it is apparent that in the aforesaid judgment, the Court was not called upon to directly decide as to whether there can be a compromise between some of the parties to the suit or not. The Hon'ble Supreme Court in the aforesaid judgment was faced with a situation when two rival suits were filed on the basis of different agreement to sells. The Hon'ble Supreme Court in those circumstances held that it is first part of Order 23 Rule 3 which would apply. The Court held that the compromise was bad in law. The relevant discussion of the Hon'ble Supreme Court is in para 21 which is extracted as under:-
"The learned trial Judge, however, was right in holding that the purported compromise was bad in law. It was unlawful being without any written consent of all the parties. We need not go into the question as to whether the same was fraudulent or not, but indisputably not only the same was not binding on the parties, the court in a case of this nature while considering the appellant's case shall not take note of the fact that any deed of sale has been executed pursuant thereto. Respondent No.3, as a logical corollary of these findings, would not be entitled to set up the plea of being bona fide purchaser for value without notice. The court may also pass such other order or orders, as it may deem fit and proper keeping in view its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963. To that extent the judgment of the learned trial Judge must be upheld and that
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In these circumstances, the judgment of the Hon'ble Supreme Court in the case of Arjan Singh's (surpa) does not help the review-applicant. Learned counsel has further relied upon another judgment passed by the Hon'ble Supreme Court in the case of Kancherla Lakshminarayana Vs. Mattaparthi Syamala and others, (2008) 14 SCC 258. In the aforesaid judgment, Hon'ble Supreme Court had held that on execution of the agreement to sell, there was a cloud on the property and as such, it would not be proper to hold that agreement holder has no locus standi to take the objections. In the aforesaid case, on the one hand, there was suit for specific performance of the agreement to sell whereas on the other hand, wife of the owner had claimed right of maintenance which was decreed and the property was sold in an auction. Hence, the aforesaid judgment also does not help the review-applicant.
Now let us deal with the contention of learned counsel for the review-applicant. As regards first contention, the answer has already been given in view of the judgment passed in the case of Surinder Singh Sibia (surpa). As regards second contention, it will be noted that rights of legal heirs of defendant No.4 shall not be affected either by the compromise or by the decree passed by this Court on 26.09.2006. The compromise is only a contract between the parties which the Court while accepting the compromise put its seal over it. Such judgment and decree does not result in either adversely effecting the rights of the persons who are not signatories to the aforesaid compromise nor it in any way results in setting aside of the judgment and decree passed by the Courts below on merits with respect to non-signatories to the compromise. At the cost of repetition, it is declared 7 of 10 ::: Downloaded on - 25-03-2019 00:17:08 ::: RA-RS-75-C-2006 (O&M) in -8- RSA No.4576 of 2003 that rights of legal heirs of defendant No.4 shall not be effected by the judgment and decree which has been passed by this Court on the basis of compromise. Legal heirs of defendant No.4 who are plaintiffs in a separate suit for specific performance of the agreement to sell, shall be entitled to continue with the suit and the Court before whom the suit is pending, would decide the suit without being influenced by the judgment and decree passed by this Court on the basis of compromise.
This aspect can further be examined from another angle. On the one hand, legal heirs of defendant No.4 pray for recalling of judgment and decree passed on the basis of compromise, on the other hand, respondent No.12 claims that legal heirs of defendant No.4 has sworn an affidavit acknowledging respondent No.12 to be owner of the property and undertaking to withdraw all the petitions. This Court in a review application would not be in a position to adjudicate upon that whether the alleged affidavit is correct or not and what is the effect of such affidavit. Learned trial Court which is adjudicating the suit for specific performance of the agreement to sell executed by defendants No.1 to 3 in favour of defendant No.4 would be in a better position to adjudicate upon correctness of the affidavit sworn in by the legal heirs of defendant No.4. In the considered opinion of this Court, once this Court has declared that rights of defendant No.4 or his legal heirs would not be adversely effected by the judgment and decree dated 26.09.2006 passed by this Court on the basis of compromise to which defendant No.4 or his legal heirs were not party, the grievance of defendant No.4 or his legal heirs stands settled. The argument of learned counsel that the suit filed by legal heirs of defendant No.4 is dead letter cannot be accepted in view of the observations made by this 8 of 10 ::: Downloaded on - 25-03-2019 00:17:08 ::: RA-RS-75-C-2006 (O&M) in -9- RSA No.4576 of 2003 Court in the foregoing paragraph.
As regards next argument of learned counsel that repeated attempts have been made by the respondents to suffocate the rights of the applicants is also to be noticed and rejected because while deciding the review application, this Court does not find any occasion to decide as to whether the allegation of the review-applicant are correct or not. Such adjudication can only be made after granting opportunities to the parties to lead evidence.
As regards next contention that compromise is against public policy, this Court find that settlement of dispute through a settlement/compromise has always been promoted by the Courts so as to settle the disputes amicably between the parties. The compromise arrived at between some of the parties cannot be said to be against public policy.
Next argument of learned counsel that the conduct of plaintiffs No.1 to 4 and defendants No.1 to 3 shows that fraud was played is also to be noticed and rejected particularly in view of the observations made by this Courts that rights of defendant No.4 shall not be affected.
Last argument of learned counsel is that subsequent purchasers have no right to contest also does not need much deliberation. The rights of the defendant No.4 and now represented by his legal heirs parties shall be decided by this Court while adjudicating upon a suit for specific performance of the agreement to sell.
In view of the aforesaid discussion while clarifying that the judgment and decree dated 26.09.2006 passed by this Court on the basis of compromise would not adversely affect the rights of legal heirs of defendant No.4 and the judgment and decree which has been passed on the 9 of 10 ::: Downloaded on - 25-03-2019 00:17:08 ::: RA-RS-75-C-2006 (O&M) in -10- RSA No.4576 of 2003 basis of compromise would not result in setting aside the judgment and decree which was passed on merits by the trial Court affirmed by the First Appellate Court qua the rights of non-signatories to the deed of settlement. In other words, the decree passed by this Court would not result in setting aside the judgment and decree passed by the Courts below on merits with respect to rights of defendant No.4 or his legal heirs.
With these observations, review application is disposed of. The pending miscellaneous application, if any, shall stand disposed of accordingly.
( ANIL KSHETARPAL )
13.03.2019 JUDGE
Dinesh Bansal
Whether speaking/reasoned Yes / No
Whether Reportable Yes / No
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