S.B. Sinha, J. - (1.) Leave granted.
(2.) The parties are co-sharers. Respondent No. 1 herein filed a suit against Bir Singh, Respondent No. 3 as also Appellant herein for permanent injunction. Appellant is wife of Respondent No. 2. A settlement was arrived at by and between the parties. The terms of the settlement were reduced to writing. It was filed before the Court and accepted. A decree was passed on the basis of the terms of the said settlement. It was recorded therein: ...Now, the Panchayat has settled the disputes amongst the parties to the effect that the portion where there is abadi and which is in the possession of which party, has been given to the same party and that there is no objection to the second party in this regard nor shall be there any objection in the future also. Apart from it has been decided that the 1/3rd portion of the remaining lands shall go to Pyare Lal and 1/3rd portion shall go to Amrit Pal and Mohan Lal and Ved Prakash sons of Kewal, Grand sons of Bir Singh and the 1/3rd share shall go to Bir Singh son of Shri Asa Ram. It has been further decided that all the criminal and civil cases going on between the parties shall be withdrawn and they shall be bound by the same. Apart from the above, the Will executed earlier shall be treated as cancelled and a new Will shall be executed in the light of the above decision. All the three parties shall bear the expenses in equal-shares. For which none of the parties shall have any objection. It has been further decided that out of the portion given to Bir Singh, one bigha of land shall be given to Pyare Lal and to which proposal all the parties have agreed. Apart from this none of the parties shall fight/dispute with regard to the aforesaid properties in future.... Pursuant to or in furtherance of the said consent decree, Respondents allegedly moved the Revenue Authorities for mutation of their names. The same was denied on the ground that by reason of the said consent decree the right, title and interest of Respondents had not been declared.
(3.) A second suit, therefore, was filed for declaration. A counter-claim was also filed by Appellant. The plaint was amended. In the plaint it was stated: That the Defendant No. 2 Tulsan, instituted suit against Bir Singh and Kewal Ram Defendants on 22.4.1987 about the land bearing Khasra Nos. 39, 57, 38, 45, 46, 47, 52, 53, 54, 55, 56 and 376 total area 7191.94 by leaving the land in dispute as was settled in between the parties in earlier suit as stated above. Although the suit filed by Tulsan against Bir Singh and Kewal Ram was collusive in nature yet the plaintiff has no cudgel with the land as stated above which she got in a collusive decree from Bir Singh and Kewal Ram, because the Defendants have already admitted the Plaintiff to be the owner in possession of the land in suit alongwith one bigha of land out of land fallen at that time to the share of Bir Singh Defendant as mentioned in its para of the plaint. The reliefs claimed in the said suit inter alia are as under: i) That the plaintiff may kindly be declared as owner in possession of the property mentioned, in para No. 1 of the plaint as well as mentioned in para No. 6 of the plaint. ii) That the defendants may kindly be restrained permanently from claiming any right, title and interest in the property in suit and from interference of any nature in the property in suit. The revenue record be also ordered to be recorrected and made up to date as per judgment and decree of this land by substituting the name of the plaintiff in column of ownership. iii) That the Defendants be restrained from interfering in any manner in the passage existing on khasra No. 53. In case the Defendants succeeded in blocking the path at the end of khasra No. 57 and to the beginning of Khasra No. 53 during the pendency of the suit then in that event in the alternative the decree for mandatory injunction be passed by giving directions to the Defendants to remove the blockade of the path/ passage at the end of khasra No. 57 and to the beginning of Khasra No. 53 which is the only connecting path to the house of the Plaintiff which is also depicted in the revenue record itself and for decree for mandatory injunction directing the Defendant No. 1 to execute the Will and honour the compromise Ext. P.A. and further relief in the failure of the defendant No. 1 to execute the document the order be issued to the court official to execute the same on behalf of the defendant No. 1; or any other relief which may become due on the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendants with costs. A contention was raised in the written statement that the said suit was not maintainable in view of the provisions contained in Section 47 of the Code of Civil Procedure. ;