LODHA, J. - (1.) THIS appeal is directed against order and decree dated 4. 4. 97 passed by Additional District Judge No. 2, Hanumangarh, whereby the suit preferred by the plaintiff- respondent No. 1 herein, has been decreed in terms of the compromise arrived at between the plaintiff and the defendant Nos. 1 and 2, the respondent Nos. 2 and 3 respectively herein.
(2.) THE brief facts giving rise to this appeal are that the plaintiff Shri Hermale Singh preferred a suit for specific performance of contract against the defendants Smt. Dhan Kaur widow of Shri Kala Singh and Ram Singh, adopted son of Shri Kala Singh, inter alia stating therein that 7 bighas of land situated in Chak 17-GGR, Stone No. 186/272, bearing Khasra Nos. 12, 13 and 18 to 22 and 5 bighas & 15 biswas land, situated in Chak No. 13- GGR were purchased by him from Kala Singh through his Power of Attorney Holder Basant Singh vide agreement dated 28. 7. 84. It is alleged that 7 bighas of land situated in Chak No. 17-GGR was agreed to be sold for a consideration of Rs. 15,000/- per bigha and 5 bighas & 15 biswas of land comprising Chak No. 13-GGR was agreed to be sold for a consideration of Rs. 10,000/- per bigha. It was further averred in the plaint that an amount of Rs. 90,000/- towards the consideration for 7 bighas of land comprising Chak No. 17-GGR and Rs. 10,000/- towards the land comprising Chak No. 13-GGR was paid to the Power of Attorney Holder of Shri Kala Singh in advance. It is stated that before the sale deed could be executed in pursuance of aforesaid agreement to sell, Shri Kala Singh expired on 4. 10. 84, therefore, a suit for specific performance of the contract was filed by the plaintiff Hermale Singh against Smt. Dhan Kaur, widow of Kala Singh and Shri Ram Singh, adopted son of Kala Singh regarding 7 bighas land comprising Chak No. 17-GGR. Regarding 5 bighas and 15 biswas of land comprising Chak 13- GGR, it was stated that the said land belong to Sher Singh s/o Budh Singh and Shri Kala Singh was only in cultivatory possession thereof, therefore, he had no right to transfer the said land. Accordingly, while terminating the agreement to that extent, the suit for specific performance of the contract was preferred by the plaintiff Hermale Singh only with regard to the land comprising Chak No. 17-GGR. During the pendency of the suit, a compromise arrived at between the plaintiff Hermale Singh and the defendant Smt. Dhan Kaur was filed before the learned trial Court. In the meantime, Shri Mohar Singh, the appellant herein, preferred an application for impleading him as party defendant in the suit on the strength of an agreement to sell dated 3. 6. 85, whereby Smt. Dhan Kaur had agreed to sell the said land comprising Chak No. 17 GGR to Mohar Singh, took an advance of Rs. 20,000/- and handed over the possession of the land. Smt. Dhan Kaur expired on 1. 5. 88, therefore, an application under Order 22 Rule 4 of C. P. C. was preferred by one Shri Attar Singh claiming himself to be an adopted son of Smt. Dhan Kaur. THE defendant No. 2 Shri Ram Singh also preferred an application under Order 22 Rule 4 stating therein that the application has been preferred by Shri Attar Singh in collusion with the plaintiff Shri Hermale Singh with an intention to grab the land in question whereas, he is the only surviving legal heir of Smt. Dhan Kaur, therefore, he alone should be permitted to defend the suit. An application under Order 22 Rule 4 was also preferred on behalf of the appellant Mohar Singh. In the meantime, the defendant No. 2 Shri Ram Singh filed the written statement contesting the suit. On 5. 1. 89, the plaintiff preferred an application under Order 22 Rule 6 C. P. C. stating therein that he has not claimed any relief against the defendant No. 2 Shri Ram Singh, therefore, the suit may be decreed in terms of the compromise arrived at in between the plaintiff and Smt. Dhan Kaur dated 21. 11. 87 already placed on record. THE said application preferred by the plaintiff Hermale Singh was rejected by the learned trial Court vide order dated 19. 2. 1991, inter alia on the ground that the issue as to whether Smt. Dhan Kaur was the sole owner of the land in question and was competent to enter into compromise has to be decided on the basis of evidence to be placed on record by the parties. Besides, taking note of the pendency of the application preferred by the appellant Mohar Singh and the fact that the suit is being contested by defendant No. 2 Shri Ram Singh, the learned trial Court arrived at the finding that the application preferred by the plaintiff under Order 22 Rule 6 cannot be entertained and that so far as the passing of the compromise decree under Order 23 Rule 3 of C. P. C. is concerned, the same shall be considered after the due trial. THE application preferred by Shri Mohar Singh for impleading him as party defendant in the suit was not opposed by the plaintiff and accordingly, the same was allowed by the learned trial Court vide order dated 14. 1. 94 and the appellant Mohar Singh was impleaded as party defendant No. 3 in the suit. THE application preferred by Shri Attar Singh and Ram Singh under Order 22 Rule 4 CPC were also not opposed by the plaintiff and the same were allowed vide order dated 11. 2. 94. It is relevant to mention herein that during the pendency of the suit, in a proceedings under Section 145 Cr. P. C. , the possession of the land was handed over to Shri Hermale Singh vide order dated 5. 12. 92 passed by Assistant Collector and Magistrate, Sangaria. The validity of the said order was assailed by the appellant Mohar Singh by way of Criminal Misc. Petition No. 528/92 before this Court, which was allowed vide order dated 8. 10. 93 and the possession of the land in question was ordered to be handed over to the appellant Mohar Singh. The Tehsildar, Tibbi was directed to recover a sum of Rs. 1,03,075/- towards the mesne profit from Hermale Singh and deposit the same in fixed deposit account in the scheduled bank for one year and further to give the said amount to the person in whose favour ultimately, the suit is decided. The plaintiff Hermale Singh preferred an application under Order 6 Rule 17 CPC for amendment of the plaint stating therein that after the death of Smt. Dhan Kaur, her legal heir Attar Singh has been taken on record and Mohar Singh has also been impleaded as party defendant in the suit, therefore, defendant No. 2 Ram Singh no more remains a necessary party to the suit. It was further stated that in a proceeding under Section 145 Cr. P. C. , the possession of the land has been handed over to Shri Mohar Singh, therefore, it has become necessary to amend the plaint. However, the application preferred by the plaintiff for amendment of the plaint was rejected by the trial Court vide order dated 16. 3. 96. On 20. 9. 96, a compromise alleged to have been entered into between the plaintiff and Attar Singh, defendant No. 1/1 was filed before the learned trial Court stating therein that the suit may be decreed in favour of the plaintiff as prayed for. While taking the said compromise on record and attesting the same, the learned trial Court passed an order vide order dated 20. 9. 96 directing that the appropriate order on the said compromise shall be passed at the time of the decision of the suit. On 15. 11. 96, yet another compromise alleged to have been entered into between the plaintiff and the defendant No. 2 Ram Singh was filed, which was also attested by the learned trial Court vide order dated 15. 11. 96, with the direction that the appropriate order on the same shall be passed at the time of the decision of the suit. On 1. 2. 97, the plaintiff preferred yet another application under Order 12 Rule 6 read with Order 23 Rule 3 CPC. During the course of the arguments on the said application, the plaintiff preferred yet another application under Order 1 Rule 10 (2) CPC for deleting the name of defendant No. 3 Shri Mohar Singh, the appellant herein from the array of the defendants. The application preferred under Order 1 Rule 10 (2) CPC supra was rejected by the learned trial Court vide order dated 13. 3. 97 holding that the defendant No. 3 is a necessary party for adjudication of the dispute involved in the suit. A written statement was filed on behalf of the defendant No. 3 appellant herein, before the learned trial Court on 15. 11. 96 and a counter claim was filed on 4. 4. 07, wherein inter alia a decree declaring the agreement dated 28. 7. 84 said to be entered into between the plaintiff and the Power of Attorney Holder of Shri Kala Singh, compromise dated 20. 9. 96 and 15. 11. 06 said to have been entered between the plaintiff and the defendants No. 1 and 2, as invalid, was sought for. Besides, a permanent injunction was also sought against the plaintiff Hermale Singh not to interfere with the cultivatory possession of the defendant No. 3 on the land in question. However, the application preferred by the plaintiff under Order 12 Rule 6 read with Order 23 Rule 3 CPC for passing of the decree in terms of the compromise arrived at in between the plaintiff and defendant No. 1 dated 15. 9. 96 and the plaintiff and defendant No. 2 dated 15. 11. 96 was allowed by the learned trial court and the suit preferred by the plaintiff has been decreed vide order dated 4. 4. 97 holding that the appellant, defendant No. 3 Mohar Singh has been impleaded as defendant No. 3 in the suit on his own application and no relief has been claimed against him in the suit, therefore, the decree in terms of compromise arrived at between the plaintiff and defendant Nos. 1/1 and 2 cannot be denied. Hence, this appeal on behalf of the appellant, defendant No. 3 in the suit. It is contended by Mr. Vikas Balia, the learned counsel appearing on behalf of the appellant that the learned trial Court was under an obligation to pronounce a single judgment in the suit, both on the original claim made by the plaintiff and on the counter claim submitted on behalf of the appellant. The learned counsel submitted that the suit claim and the counter claim ought to be regarded as constituting a single proceedings and particularly, on the facts and in the circumstances of the case, the suit claim could not have been decided keeping the counter claim pending. The learned counsel submitted that the compromise if ultimately found to be valid could have been given effect to only after the court had finally adjudicated upon the controversy between the plaintiff and the appellant-defendant No. 3. The learned counsel contended that the decree which has been passed without consent of all the parties to the suit cannot be regarded as consent decree and cannot be given effect to. Drawing the attention of this Court to the order dated 19. 2. 91 passed by the learned trial Court whereby the application preferred by the plaintiff under Order 22 Rule 6 was rejected and it was ordered that the matter with regard to grant of decree on the basis of the compromise arrived at between the plaintiff and Smt. Dhan Kaur, can be considered after the trial, the learned counsel submitted that in view of the said order, the learned trial Court could not have considered the grant of the decree on the basis of the subsequent compromises said to have been entered into in between the plaintiff and defendant No. 1/1 and defendant No. 2. The learned counsel submitted that even on compromise dated 15. 9. 96 and 15. 11. 96 having been filed, the learned trial Court had specifically ordered that the orders on the same shall be passed at the time of final decision of the suit. In this view of the matter, the learned trial Court has exceeded its jurisdiction in entertaining an application preferred by the plaintiff under Order 12 Rule 6 read with Order 23 Rule3 of CPC and passing the decree on the basis of said compromise dated 15. 9. 96 and 15. 11. 96. The learned counsel further submitted that admittedly the possession of the land in question was with the appellant and in the counter claim, the appellant had sought the declaration that the agreement said to have been executed in between the plaintiff and the Power Attorney Holder of Shri Kala Singh so also the compromise dated 15. 9. 96 and 15. 11. 96 may be declared illegal, therefore, the question of passing of the decree on the basis of the compromise arrived at in between some of the parties to the suit, does not arise. Moreover, on the basis of the decree passed, the plaintiff does not become entitle for the possession of the land in question and the rights of the appellant have obviously been adversely effected on account of the decree passed on the basis of the compromise arrived at between the parties. Accordingly, it is urged that so as to avoid the multiplicity of the proceedings, it was absolutely necessary for the learned trial Court to decide the suit claim and counter claim by a single judgment after the trial in accordance with law. In support of the contentions raised, the learned counsel has relied upon following decisions of the various High Courts:- (1) Mathura Singh vs. Deodhari Singh (AIR 1972 Patna, 16) (2) Bheem Sain vs. Laxmi Narain (AIR 1982 P & H, 155) (3) Malla Quadir vs. Malla Mahmadwo & Ors. (AIR 1983 J & K, 17) (4) T. K. V. S. Vidhya Purnachari sons and others vs. M. R. Krishanmarya (AIR 1983 Madras 291) (5) Bala Narasimha & Ors. vs. Gangaputra Cooperative Housing Society & Ors. (AIR 1984 A. P. , 166) Per contra, it is contended on behalf of the learned counsel appearing on behalf of the respondents that in view of the provisions of Section 96 (3) of CPC, no appeal is maintainable against the decree passed by the trial Court with the consent of the parties. Moreover, the appellant cannot be said to be a person aggrieved by the decree passed by the learned trial Court in favour of the plaintiff in pursuance of compromise arrived at between the plaintiff and defendant No. 1 and 2. The learned counsel submitted that even after decision of the suit claim, the counter claim filed on behalf of the appellant which has been separately registered, survives. Therefore, none of the rights of the appellant are affected by the impugned compromise decree passed by the learned trial Court.
(3.) THE learned counsel contended that the counter claim submitted by the appellant was only against the co-defendants and therefore, on that basis the suit cannot be permitted to converted into an interpleader suit. In support of the contention, the learned counsel relied upon a decision of the Hon'ble Supreme Court in the matter of Rohit Singh & Ors. vs. State of Bihar (2007 (1) WLC (SC) 105) It was further contended by the learned counsel that admittedly, the appellant is a subsequent transferee who cannot set up any claim or right against the plaintiff even if, the transfer in his favour has been affected without notice of the original transfer. In this regard, the learned counsel relied upon a decision of the Hon'ble Supreme Court in the matter of Ramakant Tripathi vs. Smt. Sheela Devi & Anr. (1995 (4) CCC (SC) 213 ). The learned counsel urged that Order 23 Rule 3 CPC not only permits partial compromise and adjustment of a suit by a lawful agreement but further gives a mandate to the Court and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit and if the compromise was lawful, the decree to extent it was a consent decree, is not appealable on account of expressed bar in Section 96 (3) of CPC. In this regard, the learned counsel relied upon the judgment of the Supreme Court in the matter of Katikara Chintamani Dora & Ors. vs. Guatreddi Annamanaidu & Ors. (AIR 1974 SC 1069) ;