Mauhar Singh Kamaria vs Geeta Kamaria

Aggrieved by order and judgment dated 28.02.2013 passed by the Court of First Additional District Judge, Datia, in Civil Suit No. 13A/10 (Smt. Geeta and Others Vs. Mauhar Singh and Others), this First Appeal has been filed by the appellants u/s 96 read with Order XLIII Rule 1(m) of Code of Civil Procedure.

The facts just necessary for decision of this appeal are that, a Civil Suit was filed by respondents No. 1 to 4 against the petitioners and three other persons for declaration and permanent injunction regarding the suit land situated at village Parasari, Tehsil and District Datia. In this Civil Suit, the parties said to have entered into a compromise. The compromise, statement of plaintiff Brijkumar (respondent No. 3), Mauhar Singh, defendant No. 1 (appellant No. 1), Sopat Singh, defendant No. 2 (appellant No. 2), were recorded on 17.03.2011. Subsequently, before passing an order on the compromise, an application u/s 151 of C.P.C. was filed on 25.03.2011 by the defendants No. 1 and 2. It would not be out of context to mention here that defendant No. 17/State a formal party and remained exparte in the original case. The application u/s 151 C.P.C. was decided on 11.07.2011 after recording the statements of Sopat Singh, Santosh Singh, Giran Singh, Rajesh, Bantu and Brij Kumar and the same was disallowed. In this application, the appellant/defendants prayed that during the course of compromise, the plaintiffs said to the petitioners that, let the defendants say in the Court that they have received the amount, they will pay the compromise amount 3,00,000/- rupees when they go to home. At the time of recording the compromise statement, the defendant No. 1, Mauhar Singh and defendant No. 2 Sopart Singh bonafidely stated that they have received the amount of 3,00,000/- rupees. But the plaintiffs did not pay discount, therefore, the application was filed before the learned Trial Court u/s 151 of C.P.C. to dismiss the compromise dated 17.03.2011.

As stated above, vide order dated 11.07.2011, this application u/s 151 of C.P.C. was rejected. The learned Trial Court subsequently pronounced the compromise judgment and decree on 28.02.2013.

The appellants have challenged the impugned judgment and decree of compromise on the ground that it is obtained by fraud and is contrary to law. The application u/s 151 C.P.C. was rejected without any enquiry. The findings recorded has been decided erroneously and the compromise without consideration is not a valid compromise. Respondents No. 1 to 4-plaintiffs who were out of possession of the suit property. Without a valid partition and registration, a compromise decree is not sustainable in the eye of law. Therefore, the decree obtained by playing fraud is nullity and is not sustainable. It is prayed by appellants that the impugned judgment and decree dated 28.02.2013 be set-aside.

Heard the rival contentions and perused the record.

In our opinion, no case has been made out by the appellants for interference with the judgment and decree passed by the judgment and decree of learned Trial Court.

Firstly, the parties entered into a compromise and in pursuant to that compromise, petition was duly signed by all including the appellants and filed before the learned Trial Court on 17.03.2011. Paragraph 2(d) states that the defendants No. 1 and 2 in compliance of the compromise have received 3,00,000/- rupees from the plaintiffs. Their statements were recorded under Order 23 Rule 3 C.P.C. including the plaintiff-appellant No. 3 Brij Kumar. Brij Kumar has said that the defendants No. 1 and 2 received 3,00,000/- rupees from the defendants. Appellant Mauhar Singh (defendant No. 1) admitted receiving of 3,00,000/- rupees. The same has been said by appellant No. 2 Sopat Singh (defendant No. 2).

Secondly, the application u/s 151 of C.P.C. was filed on 25.03.2011 i.e. almost after eight days stating that the appellants did not receive 3,00,000/- rupees as per the compromise and in the statements given before the Trial Court, no reason has been assigned for such delay in filing the application. Had there been an agreement to pay 3,00,000/- rupees on the same day but it was not paid, the defendants/appellants could have filed an application before the Trial Court immediately or at the most on the second day. This conduct of the appellants also raises a suspicion in the appellants'' case.

Thirdly, at the time of the enquiry before the learned Trial Court to decide the application u/s 151 of C.P.C. apart from the plaintiff BrijKumar, Rajesh S/o Veer Singh, Bantu S/o Ramji Charan have stated that at the time of Panchayat, the amount was given to the defendant Mauhar Singh and Sopat Singh, Witness Santosh Singh, who was examined by the defendants/appellants regarding the non-payment of the money has said that it is not true that the amount was given by Brij Kumar to Mauhar Singh and Sopat Singh but in the same paragraph he admits that he has no knowledge that the money was paid at the Panchayat by Brij Kumar to Mauhar Singh and Sopat Singh.

Lastly, the so called fraud played by the plaintiffs as has been alleged is not convincingly proved.

Keeping in view the totality of facts and circumstances, including the allegation of fraud said to have been committed by the plaintiffs, which was earlier decided by the learned Trial Court vide order dated 11.7.2011, we therefore, see no error in the impugned judgment. Therefore we declined to allow this appeal. Hence, the appeal is dismissed.

Keeping in view the peculiar circumstances of the case, parties are directed to bear their own costs.