Prakash Krishna - (1.) -This is plaintiff's appeal under Order XLIII, Rule 1 (u), C.P.C. against the order dated 2.2.2005, passed by the Additional District Judge, Court No. 16, Deoria in Civil Appeal No. 14 of 1998 whereby it allowed the appeal and set aside the judgment and decree dated 27.11.1997, passed by the Court below and remanded the matter for decision of the suit on merits after giving opportunities to the parties to file evidence.
(2.) THE plaintiff, Mahendra Yadav, instituted Suit No. 306 of 1997 against Om Prakash on the allegations that the defendant is living all alone and has been looked after by the plaintiff. He was in need of Rs. 1 lakh in the month of June, 1988, which was advanced by the plaintiff on the understanding that in lieu of money the house of the defendant stood sold. It was also understood that if the aforesaid sum of Rs. 1 lakh is not returned within a period of five years, there would be a sale deed in pursuance of the understanding arrived at between the parties in the month of June, 1988. THE defendant has failed to return the money within the aforesaid period and has executed a registered Will deed dated 25.1.1995 in his favour on the assurance that there would be no further demand for refund of money from the plaintiff. In this regard on 5.4.1996, a Yaddast was also written by the defendant. THE plaintiff is in possession of the house, which belongs to the defendant and filed the suit for injunction that the defendant be restrained permanently from transferring, alienating or interfering in the possession of the plaintiff over the disputed house. A relief for declaration was also sought for that in view of the Yaddast dated 5.4.1996, executed by the defendant, the defendant ceased to have any right, title or interest in the said house. A supporting written statement reiterating the plaint allegation was filed by the defendant on 21.11.1999 and the evidence of the plaintiff was recorded on 26.11.1997. On that day a compromise petition was filed before the trial court on the allegation that the parties have entered into a compromise and the suit be decided in terms thereof. The trial court on 27.11.1997, in the presence of the parties decided the suit in terms of compromise and the compromise was made part of the decree. Feeling aggrieved against the judgment and decree, Civil Appeal No. 14 of 1998 was filed by the defendant Om Prakash and one Smt. Vandana Devi wife of Pawan Kumar Sharma alias Pappu Sharma before the Court below on the ground that the aforesaid compromise being unlawful, the suit could not have been decided by the trial court in pursuance thereof. It was further stated that the said compromise decree was obtained by impersonation and the defendant namely Om Prakash did not sign the said compromise nor ever agreed to it. The appellant No. 2 namely Smt. Vandana Devi Sharma claimed the property in question on the basis of earlier sale deeds executed on 15.9.1995 and 29.10.1992 by the defendant Om Prakash. Smt. Vandana Devi Sharma also claimed that she is in possession of the house in question in pursuance of the aforesaid sale deeds and submitted that the compromise decree dated 27.11.1997, is liable to be set aside as the vendor namely defendant had already sold the disputed property to her through the aforesaid two sale deeds.
(3.) THE court below by the order under appeal has allowed the appeal and remanded the matter to the trial court for fresh consideration in the light of the observations made in the judgment. Heard the learned counsel for the parties and perused the record. The learned counsel for the appellant strenuously submitted that no appeal lies under Section 96, C.P.C. in view of the sub-section (3) thereof. It was submitted that a regular appeal was filed before the Court below and as such the appeal was not maintainable. On merits, he submitted that the parties having been entered into the compromise before the trial court and in the absence of any finding of impersonation by the Court below, the Court below committed illegality in allowing the appeal. The learned counsel for the respondents supported the order under appeal and submitted that the compromise in question, on the face of it, being unlawful is void under Section 23 of the Contract Act. Elaborating the argument it was submitted that title to an immovable property can be passed only through a registered document such as sale deed, gift deed or exchange.;