Sheo Ratan Prasad Gupta Vs. Smt. Prema Devi and ors. - Court Judgment

Excerpt:
(a) civil procedure code, 1908, sections 96(3) and 96(1) and order xliii, rule 1(a) (2) and order xxiii, rules 3 and 3-a - bar contained in section 96(3)--applicability--partition suit decided on basis of compromise between parties--appeal against such compromise decree--on ground that alleged compromise was obtained by coercion and inducement by practicing fraud--maintainable in view of order xliii, rule 1(a) (2)--entire law on this point- reviewed.(b) arbitration act, 1940, sections 21 and 41 - civil procedure code, 1908, order xxiii, rule 3--arbitration proceedings in pending suit--start only on reference as contemplated by section 21--when no such reference is made, section 41 also does not come into picture--in the instant case, there was a compromise arrived at by help of well..... prasun kumar deb, j.1. this appeal has been preferred against the judgment and decree dated 20.1.93 passed by sub-judge, first court, dhanbad, in title (partition) suit no. 55 of 1990, accepting the compromise petition and passing decree in terms of the compromise itself.2. the above mentioned partition suit was filed by the plaintiff- appellant for l/4th share in the movable and immovable properties contained in schedule a, b and c to the plaint and for carving out a separate takhta in his favour and also for appointment of receiver till the pendency of the suit besides other reliefs.3. it is the case of the plaintiff-appellant that ram chandra prasad gupta, the father of the plaintiff was the karta and the manager of mitakshra hindu undivided family and the said ram chandra prasad.....

Judgment:

Prasun Kumar Deb, J.

1. This appeal has been preferred against the judgment and decree dated 20.1.93 passed by Sub-Judge, First Court, Dhanbad, in Title (Partition) suit no. 55 of 1990, accepting the compromise petition and passing decree in terms of the compromise itself.

2. The above mentioned Partition suit was filed by the plaintiff- appellant for l/4th share in the movable and immovable properties contained in schedule A, B and C to the plaint and for carving out a separate Takhta in his favour and also for appointment of Receiver till the pendency of the suit besides other reliefs.

3. It is the case of the plaintiff-appellant that Ram Chandra Prasad Gupta, the father of the plaintiff was the Karta and the manager of Mitakshra Hindu undivided family and the said Ram Chandra Prasad Gupta being the Karta and manager of the joint family acquired various landed and house properties from the funds of the joint family in his own name and in the name of his wife, the defendant No. 1. The joint family has various businesses of clothes, ration and Ata Chakki etc. in the name of different co-parcerners of the joint family. The properties mentioned in Schedule A to the plaint were purchased by Ram Chandra Prasad Gupta on 11.4.1969 from the funds of the joint family. By another registered deed of sale dated 11.4.69, the properties described in item No. 2 of Schedule A was also purchased by Ram Chandra Prasad Gupta in the name of defendant No. 1, his wife, but the purchase was from the Hindu joint family funds. A market complex was constructed in the aforesaid item Nos. 1 and 2 of the Schdule A premises consisting of 41 shops therein. In the ground floor in one shop room, the plaintiff is running a Manihari shop and another shop of Ata Chakki in the ground floor is /run by defendant No. 2. The other shops are allotted to different tenants. Item No. 3 of Schedule A land and properties there on are subsequently show to be sold in the name of defendant No. 1 by a sale deed dated 12.10.83 by Ram Chandra Prasad Gupta. In this land also, there is a market complex consisting of 12 shop room constructed thereon from the joint family funds and allotted to different tenants. Item No. 4 of Schedule A to the plaint was also purchased from the funds of the joint family in the name of defendant No. 1. Similarly, item No. 5 was purchased in the name of Ram Chandra Pd. Gupta while item No. 6 was purchased in the name of Smt. Mina Devi Gupta, but all were purchased from the joint family fund. Item No. 7 was alleged to be purchased from the joint family funds in the name of Ram Kishan Prasad Gupta. Similarly, Schedule-B properties were also acquired from the fund of the joint family and the movable properties in Schedule-C are said to be in the custody of the defendants, although the same belonged to the join family. Ram Chandra Prasad Gupta died on 29.7.88 leaving behind the plaintiff and the defendants as his heirs. Since after the death of Ram Chandra Prasad Gupta, the plaintiff and the defendants remained joint in mess, business and property, but some days after his death, the defendants became hostile against the plaintiff and started torturing him and his wife, as a result of which, he was compelled to separate himself in mess from the defendants, but the plaintiff asserted that he is entitled to 1/4th share in all properties described in Schedule A, B and C to the plaint and when the plaintiff has been deniend of his share and partition of the same, the suit has been filed.

4. The defendants-respondents contested the suit by filing written statement. In the written statement, it has been stated, inter alia, after taking all usual pleas of non-maintainability, estoppel, waiver etc. that Ram Chandra Prasad Gupta being the Karta of the joint family had not acquired various lands and properties as is mentioned in the plaint to be the properties of joint family rather it was asserted that those were purchased by the defendants from their individual funds and has no relation with the joint family. About individually acquisition of items in Schedule A and B, explanation has been given from the side of the defendants as to how those were acquired by the individuals.

5. During the course of proceeding in the suit, some well-wishers of the family had impressed upon both the parties to settle up their disputes amicably and, as such, properties were amicably settled having shares to the plaintiff and a memorandum was prepared in presence of the Panches and the parties to the suit. Such Panchnama was prepared on 25.3.92 in presence of the parties to the suit and the same was signed not only by ten parties but also by the Panches. On the basis of that Panchnama, a joint petition was prepared and filed in the court on 22.4.92 with a prayer to record the compromise and decree the suit on the basis of the compromise arrived at between the parties. It may be mentioned here that although the Panchnama was referred to in the compromise, but in the joint petition, the terms, agreements and conditions which have been arrived at in course of compromise were independently incorporated. After the said joint petition was filed, the learned court below did not pass the order on the basis of the compromise but called for a report from Shristedar about its admisibility etc. and then on 6.5.92, a petition was filed by the plaintiff-appellant praying before the Court not to accept the award of the Arbitrators. Grounds taken in the scrapy petition are as follows:

(i) that the award given by the Arbitrators is not maintainable as they had biased view against the plaintiff while they were giving award.

(ii) That the compromise petition filed on 22.4.92 by the defendants and plaintiff is also not maintainable as the signature of the plaintiff on the joint compromise petition has been obtained under inducement and coercion.

6. No order was passed on that petition nor on the compromise petition and in the meantime, another petition was filed on 10.7.92 by the defendants, the copy of which has been annexed at annexure-1 of the memo of appeal, for accepting the joint compromise petition and disposing of the suit in terms of the compromise. It was contended in that petition that the disputes between the 24. In the nature and circumstances of the case, and as discussed above. I do not find any force in this appeal and hence the same is dismissed. However, considering the facts and circumstances of the case, I do not feel it proper to award cost to either of the parties. parties have already been resolved outside the Court on the intervention of the well-wishers of the parties and accordingly a joint petition was filed showing compromise and for disposal of the suit finally in terms of the compromise. It was further contended that the compromise petition was duly signed by all the parties, but for ulterior motive, the plaintiff is now trying to resile from that compromise and there is no scope to go back from the compromise arrived at between the parties. An objection was filed on 22.8.92 by the plaintiff-appellant, copy of which has been annexed at annexure 1/A to the memo of appeal, contending, inter alia, that the said joint compromise petition is not maintainable either in law or on fact and it is only a sheer abuse of process of the law at Court. It was again reiterated that in the compromise petition, the signature of the plaintiff was taken on coercion and inducement by practising fraud and mis-representation and undue influence. It was further contended that the plaintiff has not been given his actual share while doing compromise and unless and until, the due share of the plaintiff is given in the suit properties, the plaintiff is not inclined to accept the said compromise petition. It is further stated that in a Partition suit, under the principle of law, until and unless the share of all the parties have been divided by metes and bounds, the Court is not supposed to be satisfied on record on actual partition being affected by the joint petition. Hence, prayer was made to reject the compromise petition and proceed with the suit as usual. All those petitioners were heard by the learned Sub Judge, First Court, Dhanbad and by order dated 20.1.93, learned Sub-Judge held that the compromise was effected legally between the parties and there is no scope of resiling from that compromise at a later stage on the ground that the signature of the plaintiff was obtained by inducement and coercion and a preliminary decree was asked to be drawn up according to the terms of the compromise petition and the compromise petition was made a part of the decree. This order of accepting compromise and making a preliminary decree on the basis of the compromise petition has been challenged in this appeal.

7. Mr. Debix Prasad, appearing for and on behalf of the plaintiff-appellant submitted that Order XXIII Rule 3 and 3-A of the Civil Procedure Code have not been complied with and the learned court below deviating from the legal provision and accepted the compromise petition. His main stress is on the proviso and explanation of Order XXIII Rule 3 of the Civil Procedure Code. Order XXIII Rule 3 of the Civil Procedure Code runs as follows:

3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by the parties) or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it related to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit). (Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant much adjournment). (Explanation - An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.)

8. It is the submission of Mr. Debi Prasad for and on behalf of the appellant that when the lawfulness of the agreement or the compromise has been questioned and when it was stated specifically that the compromise was void due to coercion and inducement, the same is covered under the Indian Contract Act, in the form of voidable contract and, as such, not being lawful the same ought not to have been recorded without having satisfied about its lawfulness. Further submission is that the learned court below in the impugned order has not given any finding on the objection being raised from the side of the plaintiff-appellant regarding the lawfulness of the agreement/compromise when there is specific allegation of coercion and inducement. His further submission is that the learned court below without giving any opportunity of proving the inducement and coercion, as alleged by the plaintiff-appellant, the said compromise ought not to have been made the basis for passing the preliminary decree. His further contention is that paras 5,6 and 7 of the compromise alleged to be arrived at between the parties would, practically, show that no adjustment was made and that something more was to be done for the purpose of satisfying the adjustment arrived at between the parties and until and unless, such sale deeds and other documents are affected for all practical purposes, the compromises petition can not be said to be an adjustment between the parties and when there was no scope given to the plaintiff- appellant to substantiate his objection regarding the compromise petition, the same ought not to have accepted and the acceptance thereby by the impugned order is illegal on the face of it.

9. Mr. N.K. Prasad for and on behalf of the respondents has taken the preliminary objection regarding the scope of maintainability of this appeal as per section 96(3) of the Civil Procedure Code wherein it was specifically mentioned that no appeal shall lie from a decree passed by the Court with the consent of the parties. His submission is that the appeal is barred when the decree has been passed on the basis of the compromise arrived at between the parties. His further submission is that the challenge regarding the compromise petition is not on factum of compromise rather the circumstances would show that the plaintiff and never challenged the terms of agreement being arrived at between the parties on the initiation of the well-wishers. i.e. Panches and that the plaintiff-appellant is barred from challenging the same on flimsy ground without giving any particulars regarding the so called inducement, coercion, mis-representation, fraud etc. By referring to section 15 and 16 of the Indian Contract Act, his submission is that when there is no particulars regarding the coercion and inducement and simply by saying that coercion was there, the same can not made maintainable for the purpose of challening the compromise, Again, his contention is that the plaintiff-appellant in his first petition filed on 6.5.92 had never challenged to the effect that his signature was taken on the compromise/agreement arrived at in presence of the Panches by coercion rather his only contention was that the Panches took a bias view against the plaintiff-appellant. If there was any biased view by the Punches or the well-wishers, the plaintiff was, definitely, within his jurisdiction not to sign the Panchnama and resile the same, but after executing the Panchnama and then also a joint petition of compromise the plaintiff-appellant can not challenge the same by a vague statement and the same can be considered only as an after thought one. The joint compromise petition was filed the basis of the agreement arrived at in presence of the well-wishers an, as such, when there was no challenge regarding the signature given by the plaintiff-appellant in the compromise/agreement in presence of Panches, then the joint petition filed on the basis of the Panchnama can in no case be said to be executed on application of coercion or undue influence on the plaintiff-appellant. So, the submission of Mr. N.K. Prasad is that there is no scope of resiling from the compromise/agreement from the side of the plaintiff-appellant, about the lawfulness of the compromise petition or the compromise agreement arrived at on initiation of the well-wishers, then this submission of challenging lawfulness of the compromise petition has no bearing and can not lie in the mouth for he plaintiff-appellant.

10. In the light of the above submissions made by the learned Counsel of both the parties, the present appeal is required to be adjudicated. The points for consideration may be formulated in the following manner:

1. Maintainability of the appeal in the light of Section 96(3) of the Civil Procedure Code.

2. Whether arbitration proceeding is applicable in the present case as there is mention of arbitration and Arbitrator/award in the petition filed by the plaintiff-appellant before the lower Court on 6.5.92?

3. Whether the compromise petition is illegal and barred due to voidableness and as per the Indian Contract Act?

4. Whether the learned court below committed error in accepting the compromise petition without giving any opportunity to the plaintiff-objector to substantiate his objection regarding facts and legality for the compromise petition itself.

11. Regarding the first point about the maintainability of the First Appeal, Mr. N.K. Prasad by referring to section 96(3) of the Civil Procedure Code argued that the present appeal is not maintainable as the decree has been passed on the basis of compromise/adjustment arrived at between the parties and, as such, the same is not maintainable.

12. On the otherhand, Mr. Debi Prasad submits that the appeal is maintainable as separate suit on a compromise decree is barred under Order XXIII Rule 3 (A), which runs as follows:

3.A. Bar to suit.--No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was no lawful.

This proviso has been inserted under 1976 amendment becuase of proviso being incorporated under Rule 3 wherein the compromise petition when filed, the same can be objected to by one of the parties to the suit. It has also been held by a single Judge of this Court as recorted in 1996 (1) PLJR page 877 (Sheoji Prasad and Ors. v. Mohan Prasad and Ors.). where on consideration of Order XXIII Rule (A) and the proviso to Rule 3, it was held that one party to the compromise decree passed in a partition suit may challenge the same, if he feels agrieved by filing a petition under section 151 of the Civil Procedure Code. But even after hearing of that objection when the compromise was accepted and decree was passed on the basis of that compromise, then according to Mr. Debi Prasad, the only remedy is by way of appeal and in support of that he has referred to a judgment of Bombay High Court as reported in 1984 Bombay page 474 (Deorao v. Devkinandan Bhojraj Chandak and Anr.). There in that case, a compromise petition was filed and the same compromise was objected to by one of the parties, but then the decree was passed on the basis of the compromise petition after hearing objection and the compromise petition was made a part of the decree. The question arose whether appeal would be maintainable under Order XLIII, Rule 1A (2) of the Civil Procedure Code or under Section 96(1) of the Civil Procedure Code. Under order XLIII Rule 1 it has been provided as to which of the orders would be made appelable under Section 104 of the Civil Procedure Code and a list of the orders were contained in that Rule 1. When various other orders were also found to be appelable by various Courts, then by 1976 amendment, Rule 1A was inserted in the Civil Proceede Code, which runs as follows:

1-A Right to challenge non-appealable orders in appal against decrees :-Where any order is made under this Code against a party and there upon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have, been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.'

13. It was held by the Single Judge of Bombay High Court that Order XLIII Rule 1A(2) confers a right of appeal on a party who is dissatisfied with the orders passed in the suit. Each order is not permissible in an appeal under Order XLIII Rule 1A as per section 104 of the Civil Procedure Code, but a decree passed on the basis of a compromise after hearing the objection raised and making the compromise petition as a part of decree, then order 96 (3) of the Civil Procedure Code would not create a bar in proceeding with a regular appeal because the decree although passed on consent of the parties, but such consent was objected to before the decree was recorded on the basis of compromise/adjustment.

14. 1974 Supreme Court page 1069 (Katikara Chintamani Dora and Ors. v. Guatreddi Annamanaidu and Ors.) has enunciated a law that when a decree has been passed on adjustment of a suit by a lawful agreement, then the appeal is barred under Section 96(3) on the principle of creating an estoppel between the parties. This controversy came up before this Court also in a Division Bench as reported in : AIR1992Pat153 (Lagandeo Singh v. Satyadeo Singh and Ors.) and after considering the judgment of the Supreme Court as mentioned above. It was held that Order XLIII, Rule 1A shall come into force when the factum of compromise is disputed or its legality is doble and then bar under Section 96(3) can not be invoked. After consideration of this judgment, the principle in vogue is that the bar created under Sub-section 3 of Section 96 Civil Procedure Code after the compromise decree is passed on consent of the parties and if on the face of it was found to be lawful but after the veracity of the compromise arrived at between the parties was challenged on the ground of factum of compromise itself and its legality thereof (regarding its lawfulness), then there can not be any bar under Section 96(3) of the Civil Procedure Code by application of the principles in vogue by insertion of new rule under Order XLIII, Rule 1 (A) 2 of the Civil Procedure Code. In the present case, it appears that after the compromise petition was filed on 22.4.92 on the basis of Panchnama signed by the parties and Punches on 25.3.92 and objection was raised after about 14 days by the appellant and there only two grounds were taken to the effect that the Arbitrators were biased towards the plaintiff and that in the compromise petition dated 22.4.92, the signature of the plaintiff was obtained under inducement and coercion. Although, there was no proper pleadings regarding inducement and coercion but the validity of the compromise petition was challenged and the fact of compromise was also challenged to a limited extent that the Arbitrators were biased towards the plaintiff. Whether such vague working of coercion/inducement or bias of the Arbitrators were sufficient enough to go into the adjudication into lawfulness/validity for the compromise arrived at between the parties would be dealt later on but for the limited purpose of maintainability for the appal, it can be held that the factum of compromise was challenged both on facts and also on its lawfulness by the plaintiff-appellant, and in that view of the matter, the appeal is found to be maintainable on the principle as ununciated by different High Courts and of our own High Court as mentioned above and hence the appeal is held to be maintainable and the first point as formulated by this Court regarding the maintainability of the appeal is held in favour of the plaintiff-appellant.

15. On the second point regarding the Arbitration proceeding, I find no force in the submission of Mr. Debi Prasad, as Arbitration proceeding is governed under Chapter IV of the Indian Arbitration Act. The present case was filed by the plaintiff-appellant for a partition of their movable and immovable properties held jointly by the parties to the suit. Arbitration proceeding would start in a pending suit, if the parties to the suit apply for reference to the Arbitrator as such as contemplated under Section 21 of the Arbitration Act, but herein the present case, there is no application by either of the parties for referring the dispute to a Arbitrator, Section 47 of the Arbitration Act provides that if the matter of dispute is determined by arbitration, then all proceedings regarding the Arbitration Act would be applicable. If in a pending suit, such Arbitrator's award is obtained, then the subsequent proceeding will be governed by the Arbitration Act, but the same section provides that an arbitration award otherwise obtained may be, with the consent of all the parties interested, then the same may be taken into consideration by the Court as the compromise or adjustment of a suit arrived at between the parties in a pending suit. In the present case. This proviso would be applicable as there was no reference by the Court to any Arbitrator or the parties also did not go for arbitration. It was the case of both the parties that some well-wishers had made an attempt for redressal of the dispute between the parties when they are related in such a position that any person having good senses would definitely try for making an attempt to settle the dispute arose between the son on one side and mother and other sons on the other side and thus, the well-wishers sat with the parties and Panchnama was prepared after taking consent of both the parties and a division of properties were made in such a way that the dispute between the parties may set at rest for all time. In that view of the matter, the Panchnama, which was called by the Court when objection was raised, was nothing but a deed of settlement of dispute between the parties in the presence of well-wishers and Punches and on the basis of that Panchnama, a joint compromise petition was prepared incorporating the compromise arrived at before the Panches and for passing a decree on the basis of compromise. The Panchnama was never filed in the Court for having a decree on the basis of that Panchnama, then there might have been a question of proceeding under the Arbitration Act. But a simpliciter compromise petition was filed when the parties had settled their disputes outside, the Court in presence of Panches. In that view of the matter, the question of Arbitration proceeding is not applicable in the present case. Although, arbitration award etc. were mentioned by the plaintiff appellant in his first petition of objection dated 6.5.92, this word used in quite mis-concieved as is apparent on the face of it. There was no Arbitrator appointed in the suit, no arbitration award was there. Only a compromise was arrived at between the parties at the initiation and in presence of well-wishers/Ponches and in written memorandum of recording of compromise/adjustment, not only both the parties but the Panches had also signed. Such Panchnama arrived at on 25.3.92 has no bearing with the Arbitration Act. So, this point has raised and formulated by this Court is decided accordingly.

16. On the third question as formulated above, Mr. Debi Prasad by referring Order XXIII Rule 3 and its explanation, submitted that when the varacity and lawfulness of the agreement has been challenged and when the agreement or the compromise is of voidable nature, then the said compromise/agreement ought not to have been acted upon by the learned court below by making it a part of the decree and the whole suit ought not to have been decided on the basis of the said compromise.

17. Mr. N.K. Prasad on the contrary has submitted that there is not a word lawful or unlawful by the plaintiff appellant in any one of his petitions filed against the acceptance of compromise petition as a part of the decree. The contents of the first petition filed by the plaintiff-appellant on 6.5.92 has already been mentioned in the earlier part of this judgment and it could be found that except the word inducement and coercion in respect of obtaining signature of the plaintiff-appellant in the joint compromise petition, there is not a word about unlawfulness of the agreement or compromise arrived at between the parties. In the second petition filed on 22.8.92, it has only referred to the earlier petition and further used the words of obtaining of the signature of the plaintiff in the compromise petition by practising fraud, misrepresentation and undue influence and that the plaintiff-appellant has not been given his proper share by the compromise/agreement arrived at. By referring to those, Mr. N.K. Prasad's submission is that now there is no scope of raising the points of unlawfulness of the agreement adjustment arrived at between the parties before the appellate Court for the first time. According to Mr. Prasad, there is nothing in the memo of appeal also regarding such allegation of lawfulness of the agreement arrived at.

18. Mr. Debi Prasad submitted that without expressing unlawfulness of the agreement specifically by using the word, the plaintiff-appellant raised all the grounds of unlawfulness of the agreement or the compromise petition filed for the purpose of adjustment and recording of the compromise. He has referred to the words used as inducement, coercion, practising fraud, misrepresentation and undue influence and according to Mr. Debi Prasad, these words and allegations make the agreement voidable and, in that view of the matter, explanation for Order XXIII Rules 3 comes into play and the compromise adjustment ought to have been thrown out by the learned court below.

19. Mr. N.K. Prasad submitted that by using these high counding words of coercion, inducement etc. could not make an agreement or adjustment void or voidable unless particulars are given as to how and in what way coercion and inducement were there, while the signature of the plaintiff-appellant was taken in the joint petition for compromise. He has referred to Section 13, 14(1), 14(2), 15 and 16 of the Indian Contract Act. According to him, any vague and indefinite statement regarding coercion, inducement, mis-representation and fraud would not make a contract agreement void or voidable unless specific particulars are given to that effect.

20. 'Consent' has been defined under Section 13 of the Indian Contract Act, which says as follows:

that two or more persons are said to consent when they agree upon the same thing in the same sense.

Under section 14 of the Contract Act, such consent should be free consent and the consent is said to be so caused when the same has not been trained with (i) coercion, (ii) undue influence, (iii) fraud, (iv) misrepresentation. It has further been defined as free consent under the above section that the consent would be said to be caused when it would not have been given out for the existence of such coercion, undue influence, fraud, misrepresentation or mistake. Coercion has been definited under Section 15, undue influence under Section 16, fraud under Section 17 and misrepresentation under Section 18 of the Indian Contract Act. Coercion as definited under Section 15 is the committing, or threatening to commit, any act forbidden by the Indian Penal Code and such threat or unlawful detainment so caused with the intention for causing any person to enter into an agreement. Similarly, undue influence is also said to have vitiated the agreement where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other. Section 17 defines fraud and Section 18 definites misrepresentation. It is now the established principle of law that when a party to an agreement wants to get the agreement void or voidable, he must give particulars as to how and in what mode such criterians have rendered the agreement void or voidable, without any particular, a court can not act simply on the basis of allegation of coercion and inducement or misrepresentation of fact or of fraud. The compromise petition was drafted and signed before 22.4.92 and the same was filed before the Court on 22.4.92 and it is the case of both the parties that such joint petition was prepared on the basis of the terms and conditions arrived at for effecting compromise on the sitting of Panches held on 25.3.92 and there before the Panches, a Panchnama was signed by both the parties and also by the Panches and the compromise petition was prepared on the basis of that Panchnama. Nowhere it has been the allegation of the plaintiff-appellant that the compromise petition is in variation of the Panchnama or that his signature was taken on the Panchnama by using fraud, coercion, undue influence or misrepresentation. Except the allegation of bias against the Panches/Arbitrators, the plaintiff-appellant has not brought any allegation regarding arriving of the compromise or settlement of their disputes by way of agreement/compromise arrived at before the Panches and when that Panchnama hasbeen reduced into a compromise petition with the same terms and conditions, it can not be said that the signature of the plaintiff-appellant was taken by using coercion, fraud or inducement. The rejoinder to the original petition filed on 6.5.92 has also not explained in what way such inducement or coercion or misrepresentation or fraud was practised on him. In absence of such particulars, a Court of law can not act on it. On the facts and circumstances also, it is found that after the Panchnama was signed on 25.3.92, then after about one month, the compromise petition was prepared, signed and then filed on 22.4.92. The plaintiff-appellant was silent about signing of the Panchnama or arriving at an adjustment from 25.3.92 till 6.5.92 and the objection, which is also a cryptic one, was filed only on 6.5.92 after about 14 days of signing of the compromise petition. What made the plaintiff-appellant to keep mum for such a long period has not been explained in any way either in the petition dated 6.5.92 or its rejoinder filed on 22.8.92.

21. In that view of the matter, no question of voidability as per Indian Contract is applicable in the present case. The plaintiff-appellant has failed to give any particulars regarding challenge of the adjustment arrived at between the parties. Question of coercion or inducement on the plaintiff-appellant to sign the compromise petition does not fall to reason as he has never challenged of putting his signature in the original adjustment being arrived at before the Panches. It is for natural justice and equity that when the parties arrived at compromise to end up their dispute, then there is some sort of sacrifies from both the parties to end their litigation for buying peace and, in that view of the matter, there might be some sort of give and take between the parties. By that alone, the compromise petition or the adjustment arrived at can. not be said to be illegal or improper and, as such, voidable or void. In that view of the matter. I do not find that the plaintiff-appellant could be able to make out a case to the effect that the compromise was arrived at violating all principles of law as per Indian Contract Act and, as such, the same should be declared as void and should not be acted upon to end the litigation between the parties. All those objections were raised by the plaintiff with vague allegations as an after though one to draw undue case in his favour and to harras the opposite parties who are none but his mother and brothers. So, this question as formulated by this Court also falls through and decided against the plaintiff-appellant.

22. On the last question as formulated by this Court, Mr. Debi Prasad has submitted that at least a chance ought to have been given by the learned court below to substantiate his grounds of objection regarding the legality or otherwise of the compromise/adjustment alleged to have arrived at between the parties when objection has been raised regarding recording of the compro mise. In normal course, if particulars of coercion, inducement, undue influence, misrepresentation and fraud would have been given in the objection petition filed under Section 151 of the Civil Procedure Code against recording of the compromise/adjustment, then the disputed facts between the parties could have been left to the parties for proving or disproving the same before the recording of the compromise. But here, only vague statements were made without giving any particulars and even there was no scope for the other side to dispute those allegations, then there remained no scope for the learned court below of giving opportunity to plaintiff-appellant to prove those facts or allegations. Allegations should be substantiated by proper particulars otherwise the allegations remain for allegations' sake only. In the nature and circumstances of the present case, it could be found that such high-sounding words as incorporated as definited under the Indian Contract Act and used by the plaintiff-appellant in his objection petition and the rejoinder to it only with ulterior motive and delay the disposal for he matter which had already been disposed of, practically, out side the court in presence of well-wishers. So, I do not find that he learned court below had committed any error either on facts or on law in not giving an opportunity to the plaintiff-appellant to substantiate his allegation.

23. Lastly, it has been argued by Mr. Debi Prasad for and on behalf of the plaintiff-appellant that as per the agreement arrived at between the parties, some clauses are there such as para 5,6, and 7 of the compromise petition which requires something more to be done between the parties such as execution of sale deeds and making of payment etc. So, according to Mr. Debi Prasad, such compromise petition does not end the litigation between the parties but it would create numerous litigations and in that view of the matter, the compro mise petition ought not to have been acted upon. The suitised a Partition suit and the shares of the parties has been defined as per the compromise arrived at and for such shares allotted to the parties for conveniance there might be some exchange or payments to be made for effecting the compromise and then the matter would be settled. It is a partition suit an consent has been given for the purpose of granting preliminary decree and the final decree is to be prepared on the basis of that preliminary decree, of which the compromise petition is a part of it and during the course of final decree, such direction may be made by the trial Court for effecting the preliminary decree to reduce it into the form of final decree and, then also, there would further remain the process of execution for the purpose of doing needful by either of the parties to end up the litigation once for ever.

24. In the nature and circumstances of the case, and as discussed above. I do not find any force in this appeal and hence the same is dismissed. However, considering the facts and circumstances of the case, I do not feel it proper to award cost to either of the parties.