Patna High Court
Case Details
Patna High Court SA No.1 of 2011 (6) dt.09-07-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.1 of 2011 ====================================================== Raj Kumar Pd. Jaiswal Versus .... .... Appellant/s Most. Chanda Devi & Ors .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Pramod Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 6 09-07-2013 Heard the learned counsel appearing on behalf of the appellant under Order 41 Rule 11 C.P.C.
Legal Reasoning
(2) This Second Appeal has been filed by the plaintiff- appellant-appellant against the judgment and decree dated 15.09.2010 passed by the learned Additional District Judge, F.T.C. No.1, Nalanda at Biharsharif in Title Appeal No.14 of 2004 whereby the Lower Appellate Court dismissed the title appeal and thereby confirmed the judgment and decree of the trial court dated 16.09.2004 passed by learned Sub Judge I, Biharsharif in Title Suit No.96 of 2002. (3) It appears that the plaintiff-appellant has filed the aforesaid suit for partition of the suit property claiming half share in the suit property. According to the plaintiff’s case, the plaintiff had already filed Title Suit No.206 of 1984 which was
Decision
compromised on 03.01.1985. The title suit was disposed of on the Patna High Court SA No.1 of 2011 (6) dt.09-07-2013 2 basis of compromise on 28.03.1985. In terms of the compromise, the appellant has already paid Rs.5500 to the defendant- respondent and, therefore, according to the terms of the compromise, the appellant has got half share in the suit property. (4) The defendant neither appeared nor filed written statement nor contested the suit. (5) The trial court dismissed the suit holding that since there has already been partition suit and admittedly, the suit was disposed of on compromise, there is no question of second partition suit arises. The appellant filed title appeal before the Lower Appellate Court. The Lower Appellate Court again held that no paper relating to Title Suit No.206 of 1984 has been filed before the court and accordingly, held that since the earlier partition suit being Title Suit No.206 of 1984 filed by the appellant has already been disposed of on the basis of compromise, the second partition suit is not maintainable. (6) The learned counsel appearing on behalf of the appellant submitted that in the compromise, in earlier Title Suit No.206 of 1984, the terms and conditions was that if the appellant will pay Rs.5500, the appellant will get half share in the suit property. Since the appellant has paid the said amount, now the plaintiff has got half share but the courts below have dismissed the Patna High Court SA No.1 of 2011 (6) dt.09-07-2013 3 suit on finding that no paper has been filed by the appellant relating to the Title Suit No.206 of 1984. Both the defendants never contested the suit by filing written statement or leading evidences. The learned counsel placed the ordersheet dated 28.03.1985 passed in Title Suit No.206 of 1984 and submitted that a final decree has been prepared wherein the compromise application has been directed to form part of the final decree. (7) From perusal of the judgments of both the courts below, it appears that both the courts below found that the plaintiff alleged in the plaint that the decree passed in Title Suit No.206 of 1984 is null and void and is not against the right, title of the plaintiff. During the course of hearing of this Second Appeal under Order 41 Rule 11 C.P.C., the learned counsel for the appellant produced a copy of the plaint of the present suit. From perusal of paragraph 16, it appears that the plaintiff has claimed that the decree passed in Title Suit No.206 of 1984 is ineffective and is liable to be set aside. The plaintiff has prayed for half share again in the present suit. From perusal of the order recording compromise dated 28.03.1985 passed in Title Suit No.206 of 1984, it appears that the parties were directed to take steps for preparation of final decree. Now, therefore, when a preliminary decree has already been passed in Title Suit No.206 of Patna High Court SA No.1 of 2011 (6) dt.09-07-2013 4 1984 by terms of order dated 28.03.1985, the parties should have approached the court concerned for preparation of final decree within the period prescribed by law. Admittedly, the plaintiff did not produce any paper before the Trial Court or Appellate Court. Now, therefore, in the face of the compromise decree passed in Title Suit No.206 of 1984 between same parties with respect to same property, the separate suit for same relief i.e. for partition cannot be said to be maintainable and the compromise decree passed in that Title Suit No.206 of 1984 cannot be held to be null and void. (8) In the case of Pushpa Devi Bhagat(Dead) through L.R. Sadhna Rai(Smt.) vs. Rajinder Singh and others, (2006) 5 Supreme Court Cases 566, the Hon’ble Supreme Court has held that no independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A. A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23. Therefore, 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 made a decree in terms of it, and establish that Patna High Court SA No.1 of 2011 (6) dt.09-07-2013 5 there was no compromise. This decision of the Hon’ble Supreme Court was followed by this court in the case of Gauri Shankar Pathak & Ors. vs. Dr. Shankaranand Upadhyay & Ors., 2011(2) PLJR 547. Again, the Hon’ble Supreme Court has reiterated this settled law in the case of Horil vs. Keshav & Anr., 2012(2) PLJR 73 Supreme Court. (9) Now, therefore, in view of the aforesaid settled principles of law, unless the said decree is set aside, the plaintiff cannot pray for the same relief in another suit. Therefore, both the courts below have rightly dismissed the plaintiff’s suit for partition in view of the fact that there has already been a preliminary decree passed in Title Suit No.206 of 1984. (10) In view of above, I find that no substantial question of law in involved in this Second Appeal and accordingly, this Second Appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Saurabh/-