Allahabad High Court
Mahendra Yadav vs Om Prakash And Anr. on 20 September, 2006
Equivalent citations: 2007(2)AWC1274
Author: Prakash Krishna
Bench: Prakash Krishna
JUDGMENT Prakash Krishna, J.
1. This is plaintiffs appeal under Order XLIII, Rule 1(u), C.P.C. against the order dated 2.2.2005, passed by the Additional District Judge, Court No. 16, Deoria in Civil Appeal No. 14 of 1998 whereby it allowed the appeal and set aside the judgment and decree dated 27.11.1997, passed by the Court below and remanded the matter for decision of the suit on merits after giving opportunities to the parties to file evidence.
2. The plaintiff, Mahendra Yadav, instituted Suit No. 306 of 1997 against Om Prakash on the allegations that the defendant is living all alone and has been looked after by the plaintiff. He was in need of Rs. 1 lakh in the month of June, 1988, which was advanced by the plaintiff on the understanding that in lieu of money the house of the defendant stood sold. It was also understood that if the aforesaid sum of Rs. 1 lakh is not returned within a period of five years, there would be a sale deed in pursuance of the understanding arrived at between the parties in the month of June, 1988. The defendant has failed to return the money within the aforesaid period and has executed a registered Will deed dated 25.1.1995 in his favour on the assurance that there would be no further demand for refund of money from the plaintiff. In this regard on 5.4.1996, a Yaddast was also written by the defendant. The plaintiff is in possession of the house, which belongs to the defendant and filed the suit for injunction that the defendant be restrained permanently from transferring, alienating or interfering in the possession of the plaintiff over the disputed house. A relief for declaration was also sought for that in view of the Yaddast dated 5.4.1996. executed by the defendant, the defendant ceased to have any right, title or interest in the said house.
3. A supporting written statement reiterating the plaint allegation was filed by the defendant on 21.11.1999 and the evidence of the plaintiff was recorded on 26.11.1997. On that day a compromise petition was filed before the trial court on the allegation that the parties have entered into a compromise and the suit be decided in terms thereof. The trial court on 27.11.1997, in the presence of the parties decided the suit in terms of compromise and the compromise was made part of the decree.
4. Feeling aggrieved against the judgment and decree, Civil Appeal No. 14 of 1998 was filed by the defendant Om Prakash and one Smt. Vandana Devi wife of Pawan Kumar Sharma alias Pappu Sharma before the Court below on the ground that the aforesaid compromise being unlawful, the suit could not have been decided by the trial court in pursuance thereof. It was further stated that the said compromise decree was obtained by impersonation and the defendant namely Om Prakash did not sign the said compromise nor ever agreed to it. The appellant No. 2 namely Smt. Vandana Devi Sharma claimed the property in question on the basis of earlier sale deeds executed on 15.9.1995 and 29.10.1992 by the defendant Om Prakash. Smt. Vandana Devi Sharma also claimed that she is in possession of the house in question in pursuance of the aforesaid sale deeds and submitted that the compromise decree dated 27.11.1997, is liable to be set aside as the vendor namely defendant had already sold the disputed property to her through the aforesaid two sale deeds.
5. The court below by the order under appeal has allowed the appeal and remanded the matter to the trial court for fresh consideration in the light of the observations made in the Judgment.
6. Heard the learned Counsel for the parties and perused the record. The learned Counsel for the appellant strenuously submitted that no appeal lies under Section 96, C.P.C. in view of the Sub-section (3) thereof. It was submitted that a regular appeal was filed before the Court below and as such the appeal was not maintainable. On merits, he submitted that the parties having been entered into the compromise before the trial court and in the absence of any finding of impersonation by the Court below, the Court below committed illegality in allowing the appeal. The learned Counsel for the respondents supported the order under appeal and submitted that the compromise in question, on the face of it, being unlawful is void under Section 23 of the Contract Act. Elaborating the argument it was submitted that title to an immovable property can be passed only through a registered document such as sale deed, gift deed or exchange.
7. The Order XXIII of C.P.C. deals with the subject withdrawal and adjustment of suits." Rule 3 deals with compromise of suit. It provides that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by lawful agreement in writing signed by the parties, the Court shall order the such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith. The orders, 'lawful agreement' or 'compromise in Rule 3 had given rise to a conflict in the matter of interpretation. One view was that the agreements which are void under Section 19A of the Contract Act are not excluded. This was the view of the Allahabad, Calcutta, Madras and Kerala High Courts. A contrary view was taken by Bombay and Nagpur High Courts. To set it at rest, the said controversy, an explanation has been added to the Rule to clarify the position. The said "explanation" reads as follows:
An agreement or compromise which is void or voidable under the Indian Contract Act, 1972 (Act No. 9 of 1972), shall not be deemed to be lawful within the meaning of this Rule.
8. From the averments made in the plaint, it is clear beyond doubt that the plaintiff is not owner of the house in question. He, rather has admitted the ownership and title of the defendant in respect to the house in question. The learned Counsel for the plaintiff appellant could not dispute the proposition that title to an immovable property can be transferred only by a registered instrument namely sale deed, gift deed, exchange, surrender deed, etc. A copy of the compromise petition has been annexed alongwith the affidavit. By means of the said compromise, an attempt has been made to make the plaintiff owner of the disputed house by divesting it from the defendant who is owner thereof. In other words, the title to the disputed house is being sought to transfer from the defendant to the plaintiff. Such an agreement is obviously hit by Section 23 of the Contract Act. The purpose and object of the said compromise is to transfer the disputed house through the agency of the Court in absence of a registered instrument. Such thing is not permissible in law being against Section 54 of the Transfer of Property Act. which defines sale and provides that in case of tangible immovable property of value of Rs. 100 and upwards can be made only by a registered instrument.
9. In this view of the matter the finding recorded by the Court below that compromise was not lawful agreement or compromise, is correct and the trial court committed illegality in deciding the suit in terms of compromise.
10. As regards the maintainability of appeal is concerned, the issue is no longer res integra and has been set at rest by Apex Court in Banwari Lai v. Smt. Chando Devi . It has been held that where a challenge to the compromise petition is made, an application can be filed under Proviso to Order XXIII, Rule 3 of C.P.C. or an appeal under Section 96(1), C.P.C. The relevant paragraph is reproduced below:
13. When the amending Act introduced a proviso alongwith an Explanation to Rule 3 of Order XXIII saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order XLIII has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order XXIII, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1A of Order XLIII of the Code." The aforesaid judgment has been followed by learned single Judge in Durga Prasad Tandon v. Gaur Brahmin Sabha 2000 (4) AWC 2848.
11. The submission of the learned Counsel for the appellant that instead of filing a miscellaneous appeal, a regular appeal under Section 96, C.P.C. was filed and therefore the same was not maintainable needs to be noted. However, he could not dispute that even if a miscellaneous appeal would lie before the Court below and there will not be change of forum of the appellate court may be a regular appeal or a miscellaneous appeal. Assuming for a moment that the said argument of the appellant has some force it will not make any difference as it has been firmly established that mere mention of a wrong section will not make any difference if the Court had the jurisdiction to entertain and decide the appeal.
12. In view of the above discussion I find no merit in the appeal. The appeal is dismissed.