Smt. Gurmit Kaur and ors. Vs. Veero and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/622009
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided OnMay-19-2009
Judge Mahesh Grover, J.
Reported in(2009)155PLR555
AppellantSmt. Gurmit Kaur and ors.
RespondentVeero and anr.
DispositionAppeal dismissed
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - opd 4. whether the suit is bad for misjoinder or non-joinder of necessary parties? veero who was also one of the disputants and questioning the sale deed in favour of joginder singh, the compromise could not be given effect to and consequently the court was clearly precluded from taking cognizance of the same. in this view of the matter, the compromise at best could be said to be unilateral. once the compromise failed it should have been obvious to the appellants that the suit would proceed in accordance with law and they were required to produce evidence in support of the pleas that they have raised in the plaint. the learned trial court during the course of proceedings directed the respective parties to lead their evidence which the appellants failed to produce. 12. the contention of the learned counsel for the appellant is therefore entirely mis-placed and since the compromise was not accepted by all the parties and the appellants did not lead any evidence despite opportunities granted to them to substantiate their pleadings which they have raised in the plaint, the courts were very well justified in passing the impugned judgments which cannot be termed to be perverse or erroneous so as to warrant any interference in a regular second appeal. 13. the aforesaid question of law has to be answered to say that if the compromise is not accepted by all the parties then the same cannot be given effect to and the trial court has to proceed in accordance with law and procedure and if the party fails to adduce sufficient evidence in support of his plea raised in the plaint then the court is very well justified to decline the prayer as made in the plaint.mahesh grover, j.c.m. no. 6139-c of 20091. c.m is allowed as prayed for. annexures p-1 and p-2 are taken on record.2. this is plaintiffs' second appeal directed against the judgments of the learned trial court dated 10.1.2007 and that of the learned first appellate court dated 21.1.2009.3. the facts of the case in brief are that the plaintiff resham singh filed a suit seeking to restrain the defendants-respondents from interfering in his possession of the land on the ground that he was a co-sharer in land measuring 7 kanals and 4 marlas comprised in khasra no .21/10 as detailed in the plaint. it was alleged that he being a co-sharer is having 1/7th share in a joint khata khewat no .47, the total area of which is 212 kanals 11 marlas and his share came to the extent of 30 kanals 7 marlas. he further alleged that defendant no. 1 veero is also one of the co-sharers in the suit property and owned 1/49th share which comes to about 4 kanals and 7 marlas. since veero was married at a distant place she never remained in possession of any khasra number in the joint khata khewat including khasra no. 21/10. he further pleaded that this land was in cultivating possession of the plaintiff. veero is alleged to have sold the suit land measuring 7 kanals 4 marlas vide registered sale deed dated 21.8.2000 to joginder singh arrayed as defendant no. 2 in the suit and presently respondent no. 2 herein. it was pleaded that she had no right to alienate the suit property more than her share out of the joint khata and it was further pleaded that sale deed dated 21.8.2000 is without consideration and liable to be set aside and that the same was not binding upon the rights of the plaintiff also who was in exclusive possession of the suit property and since the respondents were threatening to interfere in his possession, the suit with the aforesaid prayer of injunction was filed.4. the respondents when put on notice by the trial court appeared and contested the suit. veero defendant no. 1 filed separate written statement while joginder singh-defendant no. 2 filed his own written statement. in her written statement, veero pleaded that she had executed the sale deed regarding the land belonging to her out of the joint khata and that she had disclosed to defendant no. 2 that she owned 4 kanals 6 marlas of the land out of the joint khata and she is not in possession of any land out of the joint khata and can sell her share only. she further pleaded that defendant no. 2 had agreed to get the sale deed executed regarding the land belonging to her share after the disclosure of these facts. she pleaded that she had received a sum of rs. 1 lakh only before the execution of the sale deed but she pleaded that a fraud had been played upon her by respondent no. 2 as the sale deed was never read out to her and she realized that the alleged sale deed was for a consideration of rs. 1,87,500/- and it was for land measuring 6 kanals only which is wrongly entered in khasra no. 21/10. she further pleaded that the sale deed be set aside. she further pleaded that she was never in possession of the khasra no. 21/10 and it has been wrongly entered in the sale deed and she was not entitled to sell land measuring 6 kanals.5. defendant no. 2- joginder singh pleaded that the suit is frivolous and ought to be dismissed as all the co-sharers were not impleaded as parties and plaintiff had not given entire khasra numbers of the total khata in the plaint. he further pleaded that he had purchased the suit land for a sale consideration from the co-owners of the joint holdings and since then he is in possession of the same. he also pleaded that defendant no. 1 was co-sharer in the joint khata and she was married in village ashal bhure and being a co-sharer she had validly executed the sale deed in his favour. he denied the possession of the plaintiff. he further pleaded that plaintiff resham singh had sold some land and had wrongly shown in possession of the land of more than his share. he also pleaded that he was in possession of the land after execution of the sale deed as co-sharer.6. in replication the averments made in the plaint were reiterated and pleadings of the defendants in their written statements were denied. both the parties went to trial on the following issues:1. whether the plaintiff is entitled to permanent injunction as prayed for? opp2. whether the plaintiff has not come to the court with clean hands? opd3. whether the plaintiff has suppressed the material facts from the court? opd4. whether the suit is bad for misjoinder or non-joinder of necessary parties? opd5. whether the suit is not maintainable in the present form? opd6. relief.7. learned trial court and first appellate court dismissed the suit of the plaintiff which has resulted in the filing of the present regular second appeal.8. it has been contended by the learned counsel for the appellants that during the course of proceedings a compromise has been effected between the parties. the said compromise was reduced into writing and signed by the parties. an application was also moved before the court under the provisions of order 32 rule 7 cpc read with section 151 cpc for seeking permission to compromise which was in the benefit of all including the minors and which permission was granted by the learned trial court on 2.9.2003. he contended that all the parties were present except for defendant no. 1 veero and thereafter she did not appear and consequently the compromise ought to have been accepted by the court but it had wrongly declined the same vide order dated 26.8.2006. he thus pleaded that once permission had been granted in the year 2003 the court ought to have decided the matter on the basis of the compromise. he further contended that the appeal deserves to be remanded back to enable the appellants to lead evidence because they were under the impression that the matter would be disposed of on the basis of compromise and therefore they did not lead any evidence.9. i have heard learned counsel for the appellants and have perused the impugned judgments.10. i am afraid the contention of the learned counsel for the appellants had to be rejected outrightly. it was his case that the matter was compromised and permission of the court was sought under provisions of order32 rule 7 cpc which permission was granted on 2.9.2003. smt. veero who was one of the disputants did not appear before the court in support of this compromise rather she never appeared at all. for this reason, the compromise could not be recorded. the statements of one gurmit kaur and respondent no. 2 were recorded on 27.9.2002 but in the absence of smt. veero who was also one of the disputants and questioning the sale deed in favour of joginder singh, the compromise could not be given effect to and consequently the court was clearly precluded from taking cognizance of the same. moreso, when issues were framed on 17.4.2002 and thereafter the parties who were participating in the proceedings contested the suit, the statements were recorded on 27.9.2002 and permission to effect compromise under the provisions of order 32 rule 7 cpc was granted vide order dated 2.9.2003. there is also nothing on record to show that respondent no. 1 had consented to the compromise. in this view of the matter, the compromise at best could be said to be unilateral. once the compromise failed it should have been obvious to the appellants that the suit would proceed in accordance with law and they were required to produce evidence in support of the pleas that they have raised in the plaint. the learned trial court during the course of proceedings directed the respective parties to lead their evidence which the appellants failed to produce.11. it is a settled principle of law that a compromise which is effected between the parties has to be signed and supported by their statements before the court which records such a compromise. in the absence of the disputant parties agreeing to the terms of the compromise in the manner prescribed under law, the same cannot be given effect to simply because one of the parties desires it.12. the contention of the learned counsel for the appellant is therefore entirely mis-placed and since the compromise was not accepted by all the parties and the appellants did not lead any evidence despite opportunities granted to them to substantiate their pleadings which they have raised in the plaint, the courts were very well justified in passing the impugned judgments which cannot be termed to be perverse or erroneous so as to warrant any interference in a regular second appeal. the question of law raised in the present appeal is as under:whether a compromise which has been recorded during the course of proceedings should ordinarily lead to the disposal of the suit on the basis of such compromise? 13. the aforesaid question of law has to be answered to say that if the compromise is not accepted by all the parties then the same cannot be given effect to and the trial court has to proceed in accordance with law and procedure and if the party fails to adduce sufficient evidence in support of his plea raised in the plaint then the court is very well justified to decline the prayer as made in the plaint.14. no ground to interfere.15. dismissed.
Judgment:

Mahesh Grover, J.

C.M. No. 6139-C of 2009

1. C.M is allowed as prayed for. Annexures P-1 and P-2 are taken on record.

2. This is plaintiffs' second appeal directed against the judgments of the learned Trial Court dated 10.1.2007 and that of the learned First Appellate Court dated 21.1.2009.

3. The facts of the case in brief are that the plaintiff Resham Singh filed a suit seeking to restrain the defendants-respondents from interfering in his possession of the land on the ground that he was a co-sharer in land measuring 7 kanals and 4 marlas comprised in Khasra no .21/10 as detailed in the plaint. It was alleged that he being a co-sharer is having 1/7th share in a joint Khata Khewat no .47, the total area of which is 212 kanals 11 marlas and his share came to the extent of 30 kanals 7 marlas. He further alleged that defendant No. 1 Veero is also one of the co-sharers in the suit property and owned 1/49th share which comes to about 4 kanals and 7 marlas. Since Veero was married at a distant place she never remained in possession of any khasra number in the joint Khata Khewat including khasra No. 21/10. He further pleaded that this land was in cultivating possession of the plaintiff. Veero is alleged to have sold the suit land measuring 7 kanals 4 marlas vide registered sale deed dated 21.8.2000 to Joginder Singh arrayed as defendant No. 2 in the suit and presently respondent No. 2 herein. It was pleaded that she had no right to alienate the suit property more than her share out of the joint khata and it was further pleaded that sale deed dated 21.8.2000 is without consideration and liable to be set aside and that the same was not binding upon the rights of the plaintiff also who was in exclusive possession of the suit property and since the respondents were threatening to interfere in his possession, the suit with the aforesaid prayer of injunction was filed.

4. The respondents when put on notice by the Trial Court appeared and contested the suit. Veero defendant No. 1 filed separate written statement while Joginder Singh-defendant No. 2 filed his own written statement. In her written statement, Veero pleaded that she had executed the sale deed regarding the land belonging to her out of the joint khata and that she had disclosed to defendant No. 2 that she owned 4 kanals 6 marlas of the land out of the joint khata and she is not in possession of any land out of the joint khata and can sell her share only. She further pleaded that defendant No. 2 had agreed to get the sale deed executed regarding the land belonging to her share after the disclosure of these facts. She pleaded that she had received a sum of Rs. 1 lakh only before the execution of the sale deed but she pleaded that a fraud had been played upon her by respondent No. 2 as the sale deed was never read out to her and she realized that the alleged sale deed was for a consideration of Rs. 1,87,500/- and it was for land measuring 6 kanals only which is wrongly entered in khasra No. 21/10. She further pleaded that the sale deed be set aside. She further pleaded that she was never in possession of the khasra No. 21/10 and it has been wrongly entered in the sale deed and she was not entitled to sell land measuring 6 kanals.

5. Defendant No. 2- Joginder Singh pleaded that the suit is frivolous and ought to be dismissed as all the co-sharers were not impleaded as parties and plaintiff had not given entire Khasra numbers of the total khata in the plaint. He further pleaded that he had purchased the suit land for a sale consideration from the co-owners of the joint holdings and since then he is in possession of the same. He also pleaded that defendant No. 1 was co-sharer in the joint khata and she was married in village Ashal Bhure and being a co-sharer she had validly executed the sale deed in his favour. He denied the possession of the plaintiff. He further pleaded that plaintiff Resham Singh had sold some land and had wrongly shown in possession of the land of more than his share. He also pleaded that he was in possession of the land after execution of the sale deed as co-sharer.

6. In replication the averments made in the plaint were reiterated and pleadings of the defendants in their written statements were denied. Both the parties went to trial on the following issues:

1. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP

2. Whether the plaintiff has not come to the court with clean hands? OPD

3. Whether the plaintiff has suppressed the material facts from the court? OPD

4. Whether the suit is bad for misjoinder or non-joinder of necessary parties? OPD

5. Whether the suit is not maintainable in the present form? OPD

6. Relief.

7. Learned Trial Court and First Appellate Court dismissed the suit of the plaintiff which has resulted in the filing of the present regular second appeal.

8. It has been contended by the learned Counsel for the appellants that during the course of proceedings a compromise has been effected between the parties. The said compromise was reduced into writing and signed by the parties. An application was also moved before the Court under the provisions of Order 32 Rule 7 CPC read with Section 151 CPC for seeking permission to compromise which was in the benefit of all including the minors and which permission was granted by the learned Trial Court on 2.9.2003. He contended that all the parties were present except for defendant No. 1 Veero and thereafter she did not appear and consequently the compromise ought to have been accepted by the Court but it had wrongly declined the same vide order dated 26.8.2006. He thus pleaded that once permission had been granted in the year 2003 the Court ought to have decided the matter on the basis of the compromise. He further contended that the appeal deserves to be remanded back to enable the appellants to lead evidence because they were under the impression that the matter would be disposed of on the basis of compromise and therefore they did not lead any evidence.

9. I have heard learned Counsel for the appellants and have perused the impugned judgments.

10. I am afraid the contention of the learned Counsel for the appellants had to be rejected outrightly. It was his case that the matter was compromised and permission of the Court was sought under provisions of Order32 Rule 7 CPC which permission was granted on 2.9.2003. Smt. Veero who was one of the disputants did not appear before the Court in support of this compromise rather she never appeared at all. For this reason, the compromise could not be recorded. The statements of one Gurmit Kaur and respondent No. 2 were recorded on 27.9.2002 but in the absence of Smt. Veero who was also one of the disputants and questioning the sale deed in favour of Joginder Singh, the compromise could not be given effect to and consequently the Court was clearly precluded from taking cognizance of the same. Moreso, when issues were framed on 17.4.2002 and thereafter the parties who were participating in the proceedings contested the suit, the statements were recorded on 27.9.2002 and permission to effect compromise under the provisions of Order 32 Rule 7 CPC was granted vide order dated 2.9.2003. There is also nothing on record to show that respondent No. 1 had consented to the compromise. In this view of the matter, the compromise at best could be said to be unilateral. Once the compromise failed it should have been obvious to the appellants that the suit would proceed in accordance with law and they were required to produce evidence in support of the pleas that they have raised in the plaint. The learned Trial Court during the course of proceedings directed the respective parties to lead their evidence which the appellants failed to produce.

11. It is a settled principle of law that a compromise which is effected between the parties has to be signed and supported by their statements before the Court which records such a compromise. In the absence of the disputant parties agreeing to the terms of the compromise in the manner prescribed under law, the same cannot be given effect to simply because one of the parties desires it.

12. The contention of the learned Counsel for the appellant is therefore entirely mis-placed and since the compromise was not accepted by all the parties and the appellants did not lead any evidence despite opportunities granted to them to substantiate their pleadings which they have raised in the plaint, the Courts were very well justified in passing the impugned judgments which cannot be termed to be perverse or erroneous so as to warrant any interference in a regular second appeal. The question of law raised in the present appeal is as under:

Whether a compromise which has been recorded during the course of proceedings should ordinarily lead to the disposal of the suit on the basis of such compromise?

13. The aforesaid question of law has to be answered to say that if the compromise is not accepted by all the parties then the same cannot be given effect to and the Trial Court has to proceed in accordance with law and procedure and if the party fails to adduce sufficient evidence in support of his plea raised in the plaint then the Court is very well justified to decline the prayer as made in the plaint.

14. No ground to interfere.

15. Dismissed.