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Judgment
Anand Byrareddy, J.—This is an appeal by defendants No. 2 and 4, in the suit. The parties are referred to by their rank before the trial court, for the sake of convenience.
It was the case of the plaintiff that he was the absolute owner of the properties described in the Schedule to the plaint. The same were house sites, said to have been purchased under two registered sale deeds dated 6.7.1995, from the first defendant. In that, under one sale deed, he had purchased two sites bearing No. 46 and No. 43 and under the second sale deed, he had purchased site No. 44. These sites were said to have been formed in land bearing survey No. 54 of Horamavu Agara village, Krishnarajapuram, Bangalore South Taluk. It was claimed that the khatha in respect of the properties was made out in the name of the plaintiff and that he was paying taxes to the Bruhath Bengaluru Mahanagara Palike (BBMP), after the area in which the properties are situated came within its jurisdiction.
The first defendant is said to have acquired the properties by inheritance. It was claimed that the land bearing survey No. 54, 62/1 and 62/2B were said to have been purchased by one Subbaiah on 21.3.1940 and after his death, his son namely, Ramaiah and defendant No. 1, who was the son of Ramanjanappa, the brother of Ramaiah had divided the properties. Defendant No. 1 had formed house sites in the land, which had fallen to his share and sold the said sites. The plaintiff was one of the purchasers.
It is stated that defendants 3 and 4, along with one Raju, are said to have filed a civil suit in OS 10478/2006 against defendant No. 1 and others for the relief of partition and separate possession of their alleged one-third share in the property bearing Survey No. 54, measuring 3 acres and 27 guntas of land. The said suit is said to have been dismissed as withdrawn on 10-1-2007. However, yet another suit for partition, was said to have been filed in OS 861/2007 against the first defendant and others. It was suppressed by the parties to that suit as to the land having been converted in to house sites and the same having been sold to third-parties. There was a compromise entered into in the said suit and a final decree having been drawn up in terms of the compromise as on 11.7.2007, the same was said to have been duly registered.
It is stated that on the strength of the aforesaid final decree, defendants No. 3 and 4 sought to interfere with the plaintiffs possession of the suit properties. It is in the above background that the plaintiff is said to have filed the suit seeking a declaration that the final decree passed in OS 861/2007 was not binding on the plaintiff and for permanent injunction restraining the defendants from interfering with his possession.
It transpires that defendants 2 to 4 entered appearance and contested the suit. However, defendant No. 1 is said to have remained absent and was set ex-parte.
It was said to have been admitted by the defendants 2 to 4 that the property originally belonged to Subbaiah, the grand father of defendant Nos. 2 and 3. It was however denied that there was an oral partition as claimed by defendant No. 1 and that the properties being ancestral properties were never partitioned and hence the suit for partition having been filed and decreed as aforesaid is in order and that they were laying claim to their legitimate share in terms thereof Any sale in favour of the plaintiff was not binding on them, etc.
The trial court had framed the following issues:
"1. Whether plaintiff proves that he is in peaceful possession and enjoyment of the suit property?
Whether plaintiff proves that survey No. 54 measuring 2 acres 27 guntas of Horamavu Agara village is no longer exist as an agricultural land?"
The issues were all answered in the affirmative and the suit having been decreed, the present appeal is filed.
The learned Senior Advocate Shri RX. Patil, appearing for the counsel for the appellant, contends as follows:
"The sale deeds, under which the plaintiff is shown to have purchased the suit properties are said to have been acquired by the Vendor at an oral partition. However, there was no basis for the said claim by the vendor. The trial court has accepted the bald assertion and has unfairly suspected the appellant as having colluded with defendant No. 1 in filing a suit for partition and having engineered a compromise, whereby the said defendant No. 1, was allotted a share in land other than land bearing survey No. 54 and thereby ensured that the plaintiff was deprived of the suit property. It is pointed out that there is no material placed on record to establish the oral partition claimed by defendant No. 1, in the absence of which, there was no foundation laid to presume that the suit for partition filed by the defendants 2 to 4 was a collusive suit to deprive the plaintiff of the suit property." It is asserted that the defendants 2 to 4 were not bound by the sale transactions made by defendant No. 1 and the remedy of the plaintiff would be against that defendant and it would be unjust and illegal to deprive the defendants 2 to 4 of their legitimate share in the suit property.
It is contended that the land in question is treated as agricultural land even as on date, though there is no cultivation and the mere payment of property tax to the BBMP by itself would not result in the land being converted for non-agricultural user. There has been no conversion of the land in the manner known to law, there is no sanctioned lay out plan in the formation of any house sites on the land and hence, it was rather naive on the part of the trial court to have proceeded without the need for the production of any such material, to demonstrate that the plaintiff could have purchased house sites culled out of agricultural land, which was apparently an irregularity and certainly not in accordance with law.
It is hence contended that the court below was not justified in declaring the final decree as null and void and hence seeks dismissal of the suit.
The learned counsel for the respondent No. 1, on the other hand, seeks to justify the judgment of the trial court and would assert that the fraud played by defendant No. 1 in active collusion with defendants 2 to 4 is writ large on the face of it and it is that glaring conduct of the parties which has appealed to the trial court in arriving at its well reasoned findings and seeks the summary dismissal of the appeal.
From an examination of the record and on a consideration of the rival contentions, it is seen that the trial court has accepted that the oral partition, as claimed by defendant No. 1, on the basis of which, he is said to have acquired land, out of which, the suit properties are said to have been culled out, is not supported by any material documents, except a certified copy of a General Power of Attorney, Exhibit P-36, dated 7.12.1995, said to have been executed by the late father of Defendants 2 and 3. That document was denied and disputed by D.W. -1, when he was confronted with it. The same would hardly be adequate evidence of an oral partition. There are no particulars provided as to the date when any such oral partition had taken place.
It was also necessary to have ascertained as to the manner in which house sites were formed on agricultural land and whether the same were authorized, in proceeding to trash the claim of defendants 2 to 4 of their legitimate claim pursuant to the final decree passed in the suit for partition instituted by them. The allegation of fraud as against the said defendants could not have been readily accepted.
There arises a question of law in so far as the frame of suit, which is brought to set aside the compromise decree passed in the civil suit OS 861/2007. There is an express bar under Order XXIII Rule 3-A of the Code of Civil Procedure, 1908, to a suit, which is filed to set aside a decree on the ground that the compromise on which the decree was based, was not lawful. The settled legal position in the interpretation of the above provision is that the remedy of any aggrieved party, such as the plaintiff, would be to approach the very court, which had recorded the compromise or to challenge the said decree in an appeal, with the lave of the appellate court. A separate suit is expressly barred. Therefore, apart from the above infirmities in the trial court having summarily set aside the compromise decree, in so far as it pertained to the suit properties, the suit itself was not maintainable in the light of the above provision.
In Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai Vs. Rajinder Singh and Others, , the apex court has held thus:
"17...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 there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code." Accordingly, the appeal is allowed and the judgment of the court below is set aside. The suit of the plaintiff is dismissed as not maintainable. No order as to costs.