Punjab-Haryana High Court
Vishwa Mittar vs Jit Singh on 24 February, 1992
Equivalent citations: (1992)102PLR618
JUDGMENT G.R. Majithia, J.
1. The unsuccessful plaintiff-appellants have assailed the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge dismissing their suit for mandatory injunction directing the defendant-respondents to leave a passage as per terms of the compromise recorded in Civil Suit No. 32 of 1975 decided on January 3, 1975, in this regular second appeal. ,
2. The facts :-
The plaintiff-appellants (hereinafter the plaintiffs) filed civil suit No. 32 of 1975 for restraining the defendant-respondents (hereinafter the defendants) from blocking the passage shown as 'ABCD' leading to their fields from the main road, comprised in Khasra No. 2064/1302 and 1065/1302, by erecting a field boundry at point C that the suit ended in a compromise on the statements of the parties ; that in accordance with the compromise, the parties left a path and agreed to preserve the same ; that the suit was dismissed in terms of the compromise duly recorded in Court ; that the plaintiffs had been using the path, but six months prior to the filing of the suit, the defendants started cultivating the land underneath the path and this necessitated the filing of the present suit as stated above.
3. Defendant No. 1 admitted that civil suit No. 32 of 1975 had been filed. The other pleas were denied and it was pleaded that the alleged compromise was never acted upon ; that the other co-sharers through whose land the passage was carved out were not made parties to the suit ; that though the mutation was entered in terms of the compromise but was rejected.
4. Defendants No. 2 and 3 reiterated the pleas taken by defendant No. 1 and pleaded that the compromise arrived at in the earlier suit was a paper transaction as it was never implemented and that mutation No. 2790, which was entered into by the revenue officers on the basis of the compromise arrived at between the parties, was rightly rejected.
5. The pleadings of the parties gave rise to the following issues :-
1. Whether defendants entered into compromise with the plaintiffs on 23-4-1976 as alleged ? If so, its effect ? OPP
2. Whether plaintiffs are in possession of the suit property as alleged ? OPP
3. If issues No. 1 and 2 are proved, whether plaintiffs are entitled to the injunction prayed for ? OPP
4. Whether the suit in the present form is not maintainable ? OPD
5. Whether defendants No. 2 and 3 are entitled for special costs ? If so, to what extent ? OPD
6. Relief.
6. Under issue No. 1. it was held by the trial Judge that the compromise dated April 23, 1976, Exhibit P-3, was arrived at by the parties ; the suit was not decreed in terms of the compromise rendering the compromise only a paper transaction and in view of the bar of limitation, the plaintiffs were not entitled to any relief in terms of the compromise. The issue was accordingly decided in favour of the plaintiff; issue No. 2 was not pressed and it was accordingly left undecided; issue No. 3 was decided against the plaintiffs and it was held that they were not entitled to the relief sought for ; issue No. 4 was decided against the defendants ; issue No. 5 was decided against the defendants and it was held that they were not entitled to any costs and, on an ultimate analysis, the suit was dismissed.
7. On appeal by the plaintiffs, the first appellate Court primarily focused its attention on the question of limitation and negatived the claim of the plaintiffs on the ground that the relief claimed in this suit was barred by time.
8. The approach of the first appellate Court is unsustainable. Indisputably, the plaintiffs filed Civil Suit No. 32 on January 30, 1975 for permanent injunction to the effect that the defendants be restrained from blocking the passage shown as 'ABCD' in the site plan. The parties arrived at a compromise on April 23, 1976, Exhibit P-3, which reads thus :-
"The parties to the suit have reached a compromise on the terms :
(i) That Sh. Hans Raj has left a path 2 1/2 Guthas in breadth A to F as shown in the site plan from his field No. 2073/1308 along the southern boundary.
(ii) The Ajit Singh defendant has left a path of 2 1/2 Guthas width from point F to B out of his Khasra No. 2075/1308 min towards its southern boundary.
(iii) That the plaintiffs out of their Khasra No. 2065/1302 min and 2065/1302 have left a path of 2 1/2 Guthas in width from points B to G on its western side ;
(iv) That Sh. Prem Chand and Raj Kumar out of their Khasra No. 2066/1302 has left path of the same width from points C to D on its southern side and Sh. Raja Ram and Sh. Roshan Lal have left path of the same width from points D to E out of their field No. 2066/1302/2 on its southern side, which leads to the fields of Jit Singh, defendant.
(v) That all the abovesaid persons bind themselves that they would not cause any obstruction in the path left and would not violate the terms of the compromise and will preserve the said paths which have been reserved for the use of the parties to this compromise It will not be thoroughfare "
In the light of the compromise, one of the plaintiffs, Hakikat Rai, made a statement, Exhibit P-4, stating thus :-
"I have compromised with the defendants and other persons through compromise, Exhibit C-l, and Site Plan, Exhibit C-2. The suit may be dismissed as compromised."
In the light of the aforesaid statement made by Hakikat Rai plaintiff, the Civil Court passed the final order dismissing the suit as having been compromised.
9. The plaintiffs maintained that a path was carved out in terms of the compromise and mutation was entered in terms of the statements of the parties to the lis, Exhibit P-3, but the same was rejected by the revenue officers since parties did not adhere to the same The mutation was entered for jiving effect to the terms of compromise in the revenue record. The path was carved out as agreed to by the parties, but six months before the filing of the suit, the defendants started cultivating the land underneath the path. In the light of this positive assertion, the Civil Court was enjoined with the duty to ensure that the solemn statements made in the Court were adhered to and were not frustrated. The Civil Court, which was seized of the suit ending in a compromise, would have been well advised to pass a decree in terms of the compromise, but presumably under a mistaken advice or lack of proper understanding of the correct legal provisions, it dismissed the suit as having been compromised. Dismissal of the suit does not invalidate the compromise, but the compromise arrived at between the parties could be enforced and the Court should lean in favour of implementing it and preventing the parties from impinging it. Allegedly, the path was provided in terms of the compromise, but the defendants subsequently cultivated the land underneath the path. Every invasion of the right or threat to the right will give rise to a fresh cause of action. The suit arising out of the invasion of that right will fall under the residuary Article 113 of the Limitation Act and the right to sue will accrue when the substantive right has been infringed or threatened to be infringed. The right or threat of its infringement constitutes the cause of action and gives rise to a right to sue. In Mt. Belo v. Mt. Koklan, A. I. R. 1930 P. C. 270 at 272, their Lordships of the Privy Council, while interpreting the corresponding provisions of Article 120 of the Limitation Act, 1908, observed thus : -
"There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
These observations were affirmed by the apex Court in Gannon Dunkerley and Co. Ltd. v. The Union of India, A.I.R. 1970 S.C. 1433, and it was held thus : -
"In our judgment, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted : Bolo v. Kiklan, 57 Ind, App. 325 at p. 331 : (A.I.R. 1930 P.C. 272)."
10. The suit as framed was not barred by time. Moreover, the first appellate Court dilated on the point of limitation which was never raised in pleadings or covered under any issue. Rejection of the claim of the plaintiffs on the ground of limitation not covered by the issues has materially prejudiced them. The dispute arising between the parties to the lis is narrowed by the issues and the first appellate Court could not go beyond these issues unless the Court's attention was invited by moving an application for amending the pleadings or seeking permission to raise a point not covered by the issues for it was patent on record and no evidence was required to be led and it could be decided as a pure question of law, which was not the position in the instant case. The first appellate Court non-suited the plaintiffs on wholly irrelevant ground. Resultantly, there is no other alternative but to set aside the judgment and decree of the first appellate Court and remand the case to it under Order 41, Rule 23-A, Civil Procedure Code, for decision in accordance with law.
11. For the reasons stated above, the appeal succeeds, the judgment and decree of the first appellate Court are set aside and the case is remanded to it for fresh decision in accordance with law in the light of the observations made supra. However, the parties are left to bear their own costs. The parties through their counsel are directed to appear before the first appellate Court on March 27, 1992.