S.N.Modi, J. - (1.) This is a second appeal by the defendant Ramkaran in a suit for declaration and injunction.
(2.) The relevant facts giving rise to this appeal are like this: A suit was instituted by the appellant in a revenue court for declaration and injunction against the respondents in respect of certain agricultural lands situate at villages Harbhagatpura and Indokhiya. The trial Court dismissed the suit. On appeal by the appellant, the appellate court set aside the trial court's judgment and decreed the suit. The respondents, who are seven in number, went in second appeal to the Board of Revenue. The latter allowed the appeal, restored the trial Court's judgment and dismissed the suit. The appellant thereafter filed a writ petition in this Court under Article 226 of the Constitution of India for setting aside the decision of the Board of Revenue. All the seven respondents were impleaded as non- petitioners in the writ petition. The notices of the writ petition were served on all the respondents. One of the seven respondents, namely, Hardev engaged Mr. C. L. Agarwal, Advocate, to represent him in the writ petition vide Vakalatnama Ex. 1. None of the remaining respondents engaged any lawyer to represent them in the writ petition. Shri Kishen, respondent No. 1, signed the reply to the writ petition. That reply is Ex. A/1 on the record and it bears signatures of Shrikishen as well as Mr. C. L. Agarwal on behalf of all the seven respondents though Mr. Asarwal was engaged for respondent No. 7 Hardev alone. Shrikishen, respondent No. 1, also filed his affidavit in support of his reply to the writ petition. That affidavit is marked Ex. A/2 on the record. The writ petition came up for hearing before a Division Bench of this Court on 30-8-1962. Mr. P. N Datta, Advocate, appeared on behalf of the appellant Ramkaran, and Mr. C. L. Agarwal appeared on behalf of the opposite party. The plea of the respondent Shrikishen before the revenue Court was that the lands in dispute were mortgaged in his favour and Chandra on 2-2-1942 by the father of the appellant and, later on, those lands were sold to him on 14-81947 for Rs. 945/-. In support of the above plea, Shrikishen produced mortgage and sale-deeds before the revenue Court. Dealing with the writ petition, their Lordships vide judgment dated 30-8-1962 (Ex. 3) held that the sale dated 14-8-1947 was void as it was made in contravention of the provisions of Section 16 (1) of the Jaipur Tenancy Act. As regards the mortgage-deed dated 2-2-1942, their Lordships held that a khatedar tenant was competent to alienate his land by way of mortgage in certain circumstances. Having arrived at the above findings, their Lordships disposed of the writ petition in these words : "We would have sent back the case for adjudication of the liability under the mortgage, but both the learned counsel have agreed that the plaintiff shall pay to the defendant a sum of Rs. 300 as mortgage money and that thereupon the land which is subject to mortgage shall be delivered to the plaintiff free of encumbrance. The learned counsel agrees that the plaintiff is entitled to get back 7 bighas and 9 biswas of land in khasra No. 19/1 in village Harbhagatpura which is not subject to any mortgage and that he is further entitled to get back 9 bighas and 2 biswas of land in that village and 8 bighas and 9 1/3 biswas of land in village Indokhiya on payment of the aforesaid sum of Rs. 300. It may be mentioned that the land in village Indokhiya was held on a joint lease by the father of the plaintiff along with Chandra and Shrikishan. The share of Chandra is said to have been transferred to Shrikishan subsequently. Out of the 25 bighas and 8 biswas of land in village Indokhiya, the plaintiff is thus entitled to get one-third share leaving the two-third share with defendant Shri Kishan. Accordingly, the writ petition is allowed and the decision of the Board of Revenue is set aside and the case is remanded to the Board of Revenue with a direction to determine the case in the terms of the above mentioned agreement between the learned counsel for the parties." Against the aforesaid judgment of the High Court a review petition was filed on behalf of all the respondents by Mr. C. L. Agarwal, Advocate, on 1-10-1962 but no vakalatnama of any of the respondents was filed along with the review petition. Respondent No. 5 Jagdish filed his affidavit in support of the review petition. The review petition came up for hearing on 24-1-1963 and it was dismissed by the same Bench. The relevant observations made by their Lordships in the judgment of the review petition read as under:- "After the determination of the question regarding the invalidity of the sale, the parties compromised the dispute and agreed to the redemption of the mortgage. It is difficult to reopen the decision given by us earlier when the parties had agreed to redemption on that basis and as stated in it. We do not think under these circumstances that it is open to this Court to reopen the decision on the point of sale for if that is allowed it will disturb the decision given with consent. As regards the third point, Mr. Datta has made a statement at the bar and has not agreed to what has been stated by Mr. Agarwal. We have no satisfactory justification for disturbing the consent decision on account of the points raised by Mr. Agarwal. The review petition is therefore dismissed." The Board of Revenue to Which the case was remanded passed a decree on 19-3-1963 in accordance with the agreement arrived at between Mr. P. N. Datta and Mr. C. L. Agarwal on 30-8-1962 in the writ petition. On 12-4-1963 except the respondent Hardev, the remaining six respondents instituted the present suit for grant of a decree for declaration that the agreement dated 30-8-1962 arrived at between Mr. P. N. Datta and Mr. C. L. Agarwal in the High Court and the decree of the Board of Revenue dated 19-3-1963 passed in accordance with the terms of the agreement be set aside and declared void, illegal and inoperative against them. It was also prayed that the defendant Ramkaran be restrained from executing the decree dated 19-3-1963 or from taking possession of the disputed lands in any other manner. It was alleged in the plaint that the plaintiff- respondents neither engaged Mr. C. L. Agarwal as their counsel in the High Court nor did they authorise him or give their consent to him to enter into any compromise or agreement on their behalf with Mr. P. N. Datta, the learned advocate for the defendant Ramkaran. It was further alleged that the compromise was entered into by Mr. C. L. Agarwal fraudulently and in collusion with the other party and as such it is not binding on them. The defendant appellant traversed the allegations made by the plaintiff-respondents in the plaint. He pleaded that Mr. C. L. Agarwal represented all the respondents. It was further pleaded that the Civil Court had no jurisdiction to set aside the decree passed by the revenue Court. It was also pleaded in the alternative that because the Rajasthan High Court accepted the agreement, the subordinate Civil Courts had no jurisdiction to adjudicate upon that agreement or compromise and the remedy of the plaintiffs, if any, lay in filing appeal to the Supreme Court against the judgment of the High Court. Some more pleas were raised in the written statement which would be clear from the following issues framed by the trial Court:- "1. Whether Shri Chiranjilal Advocate did not represent the plaintiffs in the High Court and had no authority to file the compromise on behalf of the plaintiffs ? 2. Whether the advocate Shri Chiranjilal filed compromise in the High Court in collusion with defendant and without the consent of the plaintiffs ? the the 3. Whether the Revenue Board passed the decree dated 193- 1963 on the basis of the compromise decision of the High Court in spite of the objection of the plaintiffs and without affording them an opportunity to be heard ? 4. Whether the suit is not triable by this Court ? 5. Relief ?" The trial Court after recording evidence led by the parties held that the plaintiffs were not able to prove that Mr. C. L. Agarwal fraudulently or collusively entered into the agreement. On the remaining issues, the trial Court recorded findings in favour of the plaintiffs and decreed the suit. On appeal by the defendant Ramkaran, the learned Senior Civil Judge, Tonk, upheld the findings arrived at by the trial Court and dismissed the appeal. The defendant has now preferred this second appeal challenging the legality of the decrees passed by the Courts below.
(3.) I have heard learned counsel for the parties and gone through the record of case. There is no manner of doubt that the only person on whose behalf Mr. C. L. Agarwal filed his vakalatnama in the writ petition before the High Court was respondent No .7 Hardev. The plaintiff-respondents neither signed any vakalatnama in favour of Shri C. L. Agarwal nor they authorised him to act or plead on their behalf. Five out of the six plaintiff-respondents have appeared in the witness-box as P. Ws. 1, 2, 3, 5 and 6, and have deposed that they did not engage Mr. C. L. Agarwal in the High Court as their advocate. They have further stated that they also did not authorise him to enter into any compromise or agreement on their behalf. P. W. 4 Hardev has deposed that he engaged Mr. C. L. Agarwal. Advocate, on his own behalf vide vakalatnama Ex. 1 which bore his signatures. He has further deposed that he had no authority to engage Mr. C. L. Agarwal on behalf of the plaintiff-respondents. The lower appellate Court on consideration of the evidence led by the parties came to the conclusion that Mr. C. L. Agarwal was appointed in the High Court to represent respondent Hardev and not plaintiff-respondents. The learned counsel for the appellant laid considerable stress on the reply filed in the writ petition which was signed by Mr. C. L. Agarwal on behalf of the plaintiff-respondents and Hardev. It is significant to note that Mr. C. L. Agarwal has not been produced in evidence to explain how he signed the reply on behalf of the plaintiff-respondents when he was engaged by Hardev alone. It appears to me that Mr. C. L. Agarwal signed the reply representing the plaintiff-respondents under misapprehension that he had been engaged by all the non-petitioners in the writ petition. In the absence of any evidence, oral or documentary, to show that the plaintiff-respondents had, in fact, appointed or engaged Mr. C. L. Agarwal as their counsel, his signatures on the reply on behalf of the plaintiff-respondents, carries no meaning in the eye of law. The learned counsel for the defendant-appellant also drew my attention to the review petition which was filed by Mr. C. L. Agarwal on behalf of the plaintiff-respondents. That is also of no consequence as he was never engaged on behalf of the plaintiff-respondents to file review petition. The review petition therefore cannot be taken to have been filed on behalf of the plaintiff-respondents. My attention was then drawn to the affidavit of the plaintiff-respondent No. 5 Jagdish wherein he has stated on oath that the writ petition was argued on behalf of the plaintiff-respondents and Hardev by their advocate Mr. C. L. Agarwal on 30-8-1962. This admission, at the best, binds Jagdish respondent No. 5 and not the other plaintiff-respondents.;