J.V.GUPTA,J - (1.) THIS is plaintiff's Second Appeal whose suit was decreed by the trial Court. An appeal against the said decree of the trial Court was decided on compromise between the parties.
(2.) THE plaintiff filed a suit for declaration to the effect that he was the owner-in possession as co-sharer of 11/16th share of the suit land. The trial Court decreed the suit vide judgment dated 22nd January, 1976, holding that the plaintiff had become the owner as co-sharer to the said extent. In appeal filed by the respondent/defendant, the parties entered into a compromise whereby statement of Walaiti Ram plaintiff was recorded on 2nd March, 1979, which was duly signed by him as well as by his counsel Shri J.R. Gupta, Advocate. It reads as under :- "I have compromised with Dharam Singh appellant. According to the compromise Dharam Singh appellant shall have 3/16th share in the suit property whereas I shall be the owner to the extent of 8/16th share. At the time of the partition the construction raised, both by Dharam Singh appellant and myself, shall be respected during the partition proceedings. Orders may be passed accordingly." A similar statement of Dharam Singh, defendant, was recorded which was duly signed by him and his counsel Shri R.G. Kohli, Advocate. It reads as follows :- "I have heard the statement of Walaiti Ram plaintiff-respondent. I accept it to be correct. Necessary orders may be passed." In view of the above compromise between the parties, the learned lower appellate Court modified the decree of the trial Court accordingly. The plaintiff has filed this Second Appeal on the sole ground that the mandatory provisions of Order 23 Rule 3, Code of Civil Procedure, as amended, have not been observed in the present case, as there was no written compromise duly signed by the parties. No other objection was raised to the compromise as such.
(3.) LEARNED counsel for the appellant submitted that in the absence of any written compromise, the compromise based on the statements of the parties, as in the present case, cannot be held to be valid or legal in view of the latest Supreme Court judgment in Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270. On the other hand, learned counsel for the respondent/defendant submitted that the said case of the Supreme Court was clearly distinguishable, as in that case even the statement of the party was not signed by the party himself whereas in the present case the statements of the parties were duly signed by them as well as countersigned by their counsel. In support of this contention, reliance is placed on a Division Bench Judgment of this Court reported as Smt. Raksha Rani alias Raksha Devi v. Ram Lal, 1986 PLJ 639.;