# ~ v. DEVI SARUP & ORS - **Citation:** [2009] 2 S.C.R. 553 - **Court:** Supreme Court of India - **Decided:** 2009-02-17 - **Case number:** Civil Appeal No.1085 of 2009 - **Bench:** S.B. Sinha, Dr. Mukundakam Sharma - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-devi-sarup-ors-25469 - **Pages:** 37 ## Headnote Code of Civil Procedure, 1908: 'W ..j Or. 23, rr. 1 and 3 - Suit for declaration and possession decreed - Withdrawal of suit in terms of compromise in c appeal - HELD: If suit is to be disposed of in terms of compromise, Or. 23, r. 1 may not have any application - If an ·~ heir has derived title to the property, he cannot be deprived thereof by reason of an agreement between plaintiff and contesting defendants. D .. Compromise in appeal - Hearing of appeal preponed / '( for the purpose - HELD: Notice should have been given to all parties - Practice and Procedure. Constitution of India, 1950: E Article 227 - Supervisory jurisdiction of High Court - HELD: Is limited so as not to enter into disputed question of ;.. fact. "' Limitation Act, 1963 : F s.3 - Schedule - Article 123 - Period of /imitation for setting aside compromise decree - HELD: A compromise decree is as good as contested decree attracting provisions of the Act- In absence of application for condonation of delay, •, court has no jurisdiction in terms of s. 3 to entertain application G ' for setting aside the decree. , ..... ,. One 'BM' was the owner of the suit properties. He had a daughter name~y 'MD'. One of the heir of 'MD' namely 553 H 554 SUPREME COURT REPORTS [2009] 2 S.C.R. A 'VN' filed two suits: Suit No 185of1989 was filed against transferees of 'RS' who was the third cousin of 'BM' stating that mutation was got sanctioned in 1954 by playing fraud and on misrepresentation that 'BM' was not alive nor did he had any heirs. In suit No. 303 of 1992 it was alleged B that 'RS' failed to carry out the intentions of the testator, and the terms of the trust were violated. Suit No. 185/1989 was decreed. During the pendency of appeals, the pla,intiff and respondents no. 1 to 3 and 'RS' entered into a compromise and the suit was withdrawn. Suit No. 303/ C 1989 was also withdrawn in terms of the compromise. However, the application of the appellant, another heir of 'MD', who was not a party to the suit, questioning the compromise on the ground that its notice was neither given to her nor to other heirs of MD, was allowed by the 0 appellate court; but the said order was set aside by the High Court. In the instant appeal it was contended for the appellant that the trial court having held that not only the plaintiff but the other heirs of 'MD' were also entitled to E· recovery of possession of the suit properties, the purported compromise entered into between the plaintiff and contesting defendants must be held to be illegal and without jurisdiction. F Dismissing the appeal, the Court HELD: 1.1 It is not a case where the original plaintiff applied for withdrawal of the suit similicitor. She did so relying on or on the basis of a compromise entered into by and between the parties. If a suit is to be decreed or G dismissed on the basis of a compromise, order XXlll Rule 1 of the Code of Civil Procedure, 1908 may not have "any application. Even in such a case, a permission to withdraw the suit could have been given onty with notice to the respondents who had become entitled to some interest H in the property by reason of a judgment and decree ( • ~ . 111111 - - - SNEH GUPTA V DEVI SARUP & ORS. 555' passed in the suit. The Court for the purpose of allowing A withdrawal of a suit after passing the decree, viz., at the appellate stage, is required to consider this aspect of the matter. 'VN', although was a plaintiff, did not claim any exclusive title in herself, but claimed title to the property as one of the daughters of 'MD'. Interest of the appellant 8 and her other sisters and brothers also stood on the same footing. They also, for all intent and purport, could have independently maintained a suit either in their individual capacities or jointly. [para 19] [569-E, F, G, H; 570-A, 8] 1.2 The claim put forth by 'RS' on the basis of an oral C 'hiba' purported to have been made by 'BM' before the Revenue authorities was found to be tainted with fraud. A finding of fact was arriv ## Text _Characters 0–39,932 of 68,482. This is a partial read: ask again with offset=39932 for what follows._ [2009] 2 S. C.R. 553 SNEH GUPTA A ~ ;, V. DEVI SARUP & ORS. Civil Appeal No.1085 of 2009 FEBRUARY 17, 2009 B ( S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ ) Code of Civil Procedure, 1908: 'W ..j Or. 23, rr. 1 and 3 - Suit for declaration and possession decreed - Withdrawal of suit in terms of compromise in c appeal - HELD: If suit is to be disposed of in terms of compromise, Or. 23, r. 1 may not have any application - If an ·~ heir has derived title to the property, he cannot be deprived thereof by reason of an agreement between plaintiff and contesting defendants. D .. Compromise in appeal - Hearing of appeal preponed / '( for the purpose - HELD: Notice should have been given to all parties - Practice and Procedure. Constitution of India, 1950: E Article 227 - Supervisory jurisdiction of High Court - HELD: Is limited so as not to enter into disputed question of ;.. fact. "' Limitation Act, 1963 : F s.3 - Schedule - Article 123 - Period of /imitation for setting aside compromise decree - HELD: A compromise decree is as good as contested decree attracting provisions of the Act- In absence of application for condonation of delay, •, court has no jurisdiction in terms of s. 3 to entertain application G ' for setting aside the decree. , ..... ,. One 'BM' was the owner of the suit properties. He had a daughter name~y 'MD'. One of the heir of 'MD' namely 553 H 554 SUPREME COURT REPORTS [2009] 2 S.C.R. A 'VN' filed two suits: Suit No 185of1989 was filed against transferees of 'RS' who was the third cousin of 'BM' stating that mutation was got sanctioned in 1954 by playing fraud and on misrepresentation that 'BM' was not alive nor did he had any heirs. In suit No. 303 of 1992 it was alleged B that 'RS' failed to carry out the intentions of the testator, and the terms of the trust were violated. Suit No. 185/1989 was decreed. During the pendency of appeals, the pla,intiff and respondents no. 1 to 3 and 'RS' entered into a compromise and the suit was withdrawn. Suit No. 303/ C 1989 was also withdrawn in terms of the compromise. However, the application of the appellant, another heir of 'MD', who was not a party to the suit, questioning the compromise on the ground that its notice was neither given to her nor to other heirs of MD, was allowed by the 0 appellate court; but the said order was set aside by the High Court. In the instant appeal it was contended for the appellant that the trial court having held that not only the plaintiff but the other heirs of 'MD' were also entitled to E· recovery of possession of the suit properties, the purported compromise entered into between the plaintiff and contesting defendants must be held to be illegal and without jurisdiction. F Dismissing the appeal, the Court HELD: 1.1 It is not a case where the original plaintiff applied for withdrawal of the suit similicitor. She did so relying on or on the basis of a compromise entered into by and between the parties. If a suit is to be decreed or G dismissed on the basis of a compromise, order XXlll Rule 1 of the Code of Civil Procedure, 1908 may not have "any application. Even in such a case, a permission to withdraw the suit could have been given onty with notice to the respondents who had become entitled to some interest H in the property by reason of a judgment and decree ( • ~ . 111111 - - - SNEH GUPTA V DEVI SARUP & ORS. 555' passed in the suit. The Court for the purpose of allowing A withdrawal of a suit after passing the decree, viz., at the appellate stage, is required to consider this aspect of the matter. 'VN', although was a plaintiff, did not claim any exclusive title in herself, but claimed title to the property as one of the daughters of 'MD'. Interest of the appellant 8 and her other sisters and brothers also stood on the same footing. They also, for all intent and purport, could have independently maintained a suit either in their individual capacities or jointly. [para 19] [569-E, F, G, H; 570-A, 8] 1.2 The claim put forth by 'RS' on the basis of an oral C 'hiba' purported to have been made by 'BM' before the Revenue authorities was found to be tainted with fraud. A finding of fact was arrived at that no such transaction had taken place as 'BM' was seriously ill and had been residing at some other place. The trial Judge also arrived at a 0 finding that before the Revenue authorities, a misrepresentation had been made stating that 'BM' was issueless. The appellant is one of the heirs and legal representatives of 'BM' being a daughter of 'MD'. She, therefore, indisputably was entitled to a share in the E property of 'MD' as one of her legal heirs. The appellant having got a decree in her favour, was entitled to protect the same. By reason of an agreement between some of the parties or otherwise, a litigant cannot be deprived from the fruit of the decree. [para 20-21] [570-C, D, E, F, G, H] 1.3 Order XXlll, Rule 3 of the Code of Civil Procedure, F 1908 provides that a compromise decree is not binding on such defendants who are not parties thereto. As the appeal has been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been G disposed of. [para 22] [571-A, B] Batdevdas Shiv/al and Another v. Filmistan Distributors (India) P Ltd. and Others (1969) 2 SCC 201; Parayya Al/ayya Hittalamani v. Sri Parayya Gurulingayya Poojari H 556 SUPREME COURT REPORTS [2009] 2 S.C.R. A and Ors. JT 2007 (12) SC 352; Gurpreet Singh v. Chatur ~ ,,. Bhuj Goel (1988) 1 SCC 270; Dwarka Prasad Agarwal (0) By LRS. and Another v. B.D. Agarwal and Others (2003) 6 SCC 230; K. Venkatachala Bhat and Another v. Krishna Nayak (d) by LRs. and Others (2005) 4 SCC B 117; R. Rathinavel Chettiar and Another v. V Sivaraman and Others (1999) 4 SCC 89 - referred to. 1.7 Title to a property must be determined in terms of "" the statutory provision. If by reason of the provisions of the Hindu Success.ion Act, .1956 the appellant herein had c derived title to the property along with her brothers and sisters, she cannot be deprived thereof by reason of an agreement entered into by and between the original plaintiff and the contesting defendants. [para 27] [573-D, E] D R. Ramamurthy Ayer v. Raja V Rajeswara Rao (1972) .... 2 SCC 721; R. Rathinavel Chettiar v. V Sivaraman (1999) ). 4 SCC 89; Bijayananda Patnaik v. Satrughna Sahu and Ors. (1964) 2 SCR 538; and Hulas Rai Baij Nath v. Firm K.B. Bass & Co. (1967) 3 SCR 886 - referred to. E Amteshwar Anand v. Virender Mohan Singh and Others (2006) 1 sec 148 - distinguished. 2.1 If the hearing of a case is preponed, it should be .... done with notice to all the parties. It is not the case of respondent no. 1 that notice had been given to all the ... ·F parties or otherwise also they were aware thereof. Indisputably, the date fixed in the matter was July, 1998. The compromise petition, however, was filed on 25.04.1998. For the purpose, the date was preponed. Indisputably, the appellant was not informed thereabout. G She was not given any notice of preponement of the date. The,question as to whether the appellant knew thereabout ~· lo or not is essentially a question of fact. [para 38 and 31] [578-8, C; 575-G, H; 576-A, B] Kashmir Singh v. Union of India & Ors. (2008) 7 SCC H ,259 - held inapplicable. SNEH GUPTA V. DEVI SARUP & ORS. 557 ~ )- Jai Narain Parasrampuria v. Pushpa Devi Saraf (2006) A 7 SCC 756; T VR. Subbu Chetty's Family Charities v. Raghava Mudaliar AIR 1961 SC 797 - distinguished. ' M. Meenakshi v. Metadin Agarwal (2006) 7 SCC 4 70 and Sultan Sadik v. Sanjay Raj Subba (2004) 2 SCC 8 377; Rajasthan State Road Transport Corporation and others v. ZakirHussaif'! (2005) 7 SCC 447; State of Punjab f and Others v. Gurdev Singh (1991) 4 SCC 1; and A.R. ... Antulay v. R. S. Na yak & Anr.(1988) 2 SCC 602 - referred to. c 2.2 The High Court, however, was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High court - while exercising its supervisory jurisdiction to enter into D -'( the disputed question of fact. It has not been found by the High Courtithat the findings arrived at by the Additional District Judge were perverse and/ or in arriving at the said findings, the Additional District Judge failed and/ or neglected to take into consideration the relevant factors E or based its decision on irrelevant factors not germane thereto or there existed an error apparent on the face of record. [para 33] [ 576-E, F, G] -,/ Yeshwant Sakhalkar and Another v. Hirabat Kamat Mhamai and Another (2004) 6 SCC 71 - referred to. F 3.1 The compromise decree even if void was required to be set aside. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. [para 48] (587-0, E] G .. ;/ State of Rajasthan v. D.R. Laxmi (1996) 4 SCC 445; and · Sultan Sadik v. Sanjay Raj Subba (2004) 2 SCC 377 - referred to. 3.2 Article 123 of the Schedule to Limitation Act is in H 558 SUPREME COURT REPORTS [2009] 2 S.C.R. A two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In the instant case, summons were served upon the appellant; she appeared in the appeal, and knew 8 about the proceedings. Therefore, the first part of Article 123 shall apply. Indisputably, the case was fixed in July 1998, but the application was filed on 28.2.2002, i.e., after r~ - ... ' a gap of four years. There is no reason as to why the factum of passing of the decree could not have been C known in July 1998 or soon thereafter. [para 44-45] [582B, C, D, E, F] Mohd. Noorul Hoda v. Bibi Raifunnisa & Ors. (1996) 7 SCC 767; Nahar Enterprises v. Hyderabad Allwyn Ltd. & Anr (2007) 9 SCC 466; Manick Chandra Nandy v. Debdas Nandy & Ors. (1986) 1 SCC 512; and Panna/al v. Murari/al (1967) 2 D SCR 757 - referred to. 3.3 Even otherwise, no error has beec committed by the High Court in arriving at the finding that the appellant had knowledge of the compromise decree much earlier. She did not file any application for condonation of delay. E She filed two more applications for recall of the order dated 6.11.2004 in other connected appeals. Those applications were filed after expiry of the period of limitation and none of them were accompanied with any application for condonation of delay. In the absence of any application F for condonation of delay, the Court had no jurisdiction in terms of s.3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [para 49] [588-G, H; 589-A, BJ Oipak Chandra Ruhidas v. Chandan Kumar Sarkar G (2003) 7 SCC 66; and Sayeda Akhtar v. Abdul Ahad (2003) (7) sec 52 - referred to. Case Law Reference (1969) 2 sec 20 referred to para 23 H 12007 (12) SC 352 referred to para 23 \·- SNEH GUPTA V. DEVI $ARl)P & OR$. 559 ~ ,. (1988) 1 sec 210 referred to para 24 A (2003) 6 sec 230 referred to para 24 (2005) 4 sec 111 referred to para '2 (1999) 4 sec 89 referred to para 24 B (1972) 2 sec 121 referred to para 28 (1964) 2 SCR 538 referred to para 29 .; (1967) 3 SCR 886 referred to par~ 29 (2006) 1 sec 148 distinguished para 30 c (2004) a sec 11 referred to para 33 2008) 1 sec 2ss held inapplicable para 39 (2ooa) 1 sec 756 distinguished para 40 p -+ .; AIR 1961 SC 797 distinguished para 40 (2oos) 7 sec 470 referred to para 42 (2004) 2 sec 371 referred to para 42 (2005) 7 sec 447 ref~rred to para 43 E (1991) 4 sec 1 reterr~q to parn 4a ... (1996) 1 sec 767 r~ferred tg p~r~ 45 y (2001) e sec 466 referred to· para 47 F (1986) 1 SCC612 referred to para 47 (1967) 2 SCR 767 referred to para 47 (1 esa) 2 sec so2 rnferreg to para 48 (1996) 4 sec 445 n~ferrec:J to p~ra 4Q G r ~ "' (2004) 2 sec 377 ref@rreq tQ paFa 48 (2003) 7 sec ee referred tQ p~ra 4~ (2003) (7) sec a2 ref~rr~d to Para 49 560 SUPREME COURT REPORTS [2009) 2 S.C.R. A CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1085 ~ ,. I? Qf 2009 f.rom th@ final Judgement and Order dated 26.05.2005 of the HiQh Court of Judicature at Allahabad in Civil Misc. Writ Petitil;ln No. 1920 of 1999. S.P, Singh, Raje~h Kumar, Neeraj Shekhar, Mohan Pandey, Satish PC\ndey and Chitralekha Sen, with him for the App~!lent. C. ~Jl. Singh, Vibhakar Mishra, K.K. Pandey, Pankaj Sharma anq A~hi~th Kum9r, with him for the Respondents. Th@ Judgem~nt of the Court was delivered by S~ij, SINHA, J. O 1, L,.e~we {aranted. 2. lnterpre,tation of Order XXI II Rule 1 of the Code of Civil Progedure it> involved in this appeal. It arises out of a judgment and order d~ted. 13.l!UWOS passed by a learned Single Judge E gf the High Court of Punjab and Haryana setting aside an order dated 2~.9.2006 passed by the Additional District Judge, Jagadhari whereby and whereunder the terms of settlement entered into by way of an agreement dated 25.4. 1998 between §Qm§ Qf th@ p~rtie§ h~reto were declared illegal as also null F and vgig. 3, ln~isputably, two gyit§ were filed being Suit No.185 of 1989 arid Suit No.30~ of 1992 on 20. 11.1989 and 21.3.1992 before th§ Additional Civil J1Jd9a, Jagadhari, Haryana and S~nior b>ivision ~§ncti aind b@fern the Clvll Judge, Jagadhari, § Hery~n~, r~&p@ctiv@ly, In th@ s~ig §uits, inter ali1:1, the question as regards an order of mutation carri~d gut in th@ R~venue record$ pursuant to or in furtheranc~ of a transfer made by one Rc;ighuvir Singh in favour H of his wife and son stated to be under an oral gift deed SN!;H ~UPTA V OEVI ~AR.WP & ORS. 561 (S.S. SINHA J.,J representing himi@lf a§ th§ sw(;'3eS?Pr of Sh~numal was in A questiori. W@ would refer to the respective claims made in the said suit$ a little l~ter. We m~y. however, at this sta~e, notice the genealogical tree which is as under; [ Bany Mal B r ~-·"'-~ r ._;.,._ ... Munni- .. Devi W/q O.P. Gypta I c r -. I I I I I . - ~ ~ Ct-rnnder Veen a Sneh Lata Pawan K.K. Vi nod Nlrwanl Nirwimi @6n12h Gupta Gupta Gupta ~lJpt~ ..... -~ ···---· . ~- " . . . - .. .... -· D Rfl9htlir §ingh ' QQui?in gt a~ny M~I Oir ~in~h h~g ~gqyir~~ lif~ interest in. the purp9rting ea.id Will without having any right to alienate, ~ra11~fer, mortgage or creating any charge on the properties situated in various villages, namely, Rapri, Radur, Ghesfur etc. H 562 SUPREME COURT REPORTS [2009] 2 S.C.R. A 5. In Suit No.185 of 1989, the cause of action is said to have arisen when order of mutation was passed in favour of the transferees of Raghbir Singh. Whereas the decree prayed for in Suit No.303of1992 was for a declaration that Raghubir Singh was only having a life interest in the suit property and having not 13 abided the terms and conditions contained in the said Will dated 27.3.1943, has lost his right to manage the property in suit; an order of mutation was the subject matter of Suit No.185 of 1989, on the premise, as has been noticed by the learned Trial Judge as under: C "i) That in the alleged mutation, Banu Mal has been shown to be without his wife and children, but in fact, he had a daughter named Jeewani @ Munni Devi, living Cl!t that time. Thus, said mutation was sanctioned by producing a fictitious person, in place of Banu P ·Mal; ii) that mutation was neither verified nor initialed with di\lte by filed Kanungo, as required under para 7.4(ii) of the P'unjab Land Records Manual; E (iii) that another mutation No.1423 pertaining to the partition of joint holdings, was sanctioned on ~a.2.1 ~54, l;;>μt then~ is no mention in the disputed mutation No.1427, entered on 26.2.1954 and §anctigned on 2.3.1964, therein. Thus, disputed F rnμtation Wi$ kept aecret flnd later on got sanctioned, in collusion with revenue officers. The disputed rnutation was sanctioned without any request of Ba nu Mal; G H (iv) that mutation No.1422 and 1423, dated 28.2.1954 §hgw that the o.onsolidation work in village Rapri starte~ on 2!:UL 1952 and completed on 28.2.1954 ~ut di~put~ct mμtaticm was entered prior to completion Qf consolidation work and without any approval or ~~n9tiqn of the c;;onsolidation Officer, as required to pe rn!:lqe un9er th@ Consolidation of Holdings of • ... (v) SNEH GUPTA V. DEVI SARUP & ORS. 563 [S.S. SINHA J.] Punjab Act, 1948. Had it been in the knowledge of A Banu Mal, then he would have filed an application before the consolidation Officer, but no such application is available on the record; that under the will, Raghubir Singh (defendant No.4) had a life estate on the property in dispute, but he 8 has alienated/gifted/transferred the property of the Will to different persons, without any right, title and against the dictates of the will. Thus, this fact goes to prove the mala fide and fraudulent intention of R~ghubir Singh, who got the disputed mutation forged C and fabricated. The disputed mutation does not show the name of the person, in whose favour of the alleged oral hiba was made by Banu Mal; and (vi) that said Banu Mal had been residing with his 0 religious Guru at Saharanpur (UP) and die to his illness, he was unable to work for about one year, prior to his death. He was completely confined to his bed and therefore, he was not present before the rev.enue officer, at the time of sanction of that mutation." E 6. The cause of action for institution of the Suit No.303 of 1992 is said to have arisen as Raghbir Singh had not carried out the testator's intentions contained in the said Will dated 27.3.1943 and, thus, violated the terms of the 'trust' and despite F having been called upon to.handover possession failed and/or refused to do so. 7. The properties in suit involved in both the suits were also different. Whereas in Suit No.185 of 1989, the subject matter of the suit was 835 kanals and 7 marlas of land (485 G acres) situated in the revenue estate of village Rapri in the State of Haryana, the subject matter of in Suit No.303 of 1992 was the land measuring 221 kanal 8 marlas (about 24-25 acres) situated in village Rapri, Radaur, Ghespur and Dholra). H A B c D 564 SlJPR~ME COURr REPORTS [2009] 2 S.C.R. Title suit No.185 was decreed by a judgment and decree di:lted 30.10.199S passed by the Additional Civil Judge, Senior Division Jag~dhati, Haryana; holding : ilAs a result of my findings and observations on above issues and more particularly, on Issue No.1, 2 and 9, the suit of the plaintiff is decreed with cost, against the defendants No.1 to 4 and 11 to 24, with the declaration that mutation No.1427, sanctioned on 2.3.1954 (Ex.P·8) and sale deeds and mutations, subsequent thereto, are illegal, null and void, Ineffective, ultra vires and not binding upon the rights of plaintiff and defendants No.5 to 9 and plaintiff and defendants No.5 and 9 are also entitled to the possession of the suit land ~nd defendants No.1 and 4 and 11 to 24 are also restrained from further alienating, transferred or creating any charge on the suit land, in any manner." 8. In passing the said judgment and decree, the Court arrived at a finding that Raghbir Singh played a fraud in making transfer of the properties purported to be under a 'hiba' made E by Banumal. It was furthermore held that order of mutation was not passed in presence of Banu Mal. The learned Judge pointed out that while Banu Mal had been shown to be without any issue before the Revenue Officer although , admittedly, he had a daughter named Munni Devi @ Jeewani. F It was, therefore, opined that the purported gift in terms whereof the mutation was sanctioned in favour of the respondent Nos.1, 2 and 3 and their mother was an act of fraud and misrepresentation on their part to deprive the children of Munni Devi, the daughter of Banu Mal, of their properties. G 9. Respondent Nos. 1 to 3 herein and Raghbir Singh filed H appeals thereagainst before the District Judge which were marked as Appeal No.254/33 of 1996. As some properties had been transferred, the transferees thereof also preferred appeals which were marked as Appeal Nos.218 and 220 of 1996. SNEH GUPTA V. DEVI SARUP & ORS. 565 [S.B. SINHA J.] " ~ 10. It is not in dispute that during the pendency of the said A1-, appeals, the plaintiff and the respondent No.3 entered into a compromise. A compromise petition was filed in Civil Appeal No.254 of 1996, the terms whereof are as under : "That the parties have compromised. As per compromise, B the appeal of the appellant may kindly be allowed and the suit of the respondents may kindly be dismissed as withdrawn and the parties be left to bear their costs. The • appellants are the absolute owners of the suit property.'~ 11. The learned Additional District Jagadhari in whose c court the said appeal was transferred for disposal recorded the compromise allowing the appeal and dismissing the suit of Veena Nirwani. A declaration was also made that the appellants therein (Respondents Nos. 1 to 3 herein) were the absolute owners of the said property. D ,;_ It is not in dispute that the appellant and/or other heirs and legal representatives of the said Munni Devi were not parties to the said compromise. A compromise was also said to have been entered into E by Veen a Nirwani-plaintiff with Raghbir Singh and others in Suit No.303 of 1992, the terms whereof read as under : .... "1 . That the suit of the plaintiff is to be decreed as prayed -,I for in the plaint except the land measuring 42 Kanals 3 marlas i.e. 113rd share of the land measuring 126 F Kanals 9 marlas fully detailed and described in para 'C' of the heading of the plaint. 2. That the defendant No.1 has delivered/handed over the whole property fully detailed and described in the heading of the plaint to the plaintiff and defendants G ,., Nos.2 to 6 at the spot and now the plaintiff a·nd j. defendants Nos.2 to 6 are in actual and physical possession being its owners and defendant No.1 or his successors or LRs will have no right, title or interest of any kind in the land in suit. H 566 A 8 c D SUPREME COURI REPORfS [2009] 2 S.C.R. 3. That the defendant No.1 has an electric tube~well in the area of village Dhaulra and defendant No.1 will be bound to give water for irrigation to the plaintiff and defendant Nos. 2 and 6 for one year. 4. That the plaintiff and defendants Nos.2 and 6 are owner$ in possession of tree etc. standing in the land in suit and the plaint has been delivered to the plaintiff and defendant Nos.2 and 6. However, some portion of these properties are under the tenancy of different persons and now the plaintiff and defendants Nos.2 and 6 will have a right to recover the rent of these properties and deal with the properties in the manner they like i.e. they have each and every right to eject the tenant and get possession of the same and to alienate etc. Shops mentioned at point G & H have already been alienated by the defendants and the relief regarding these shops is relinquished by the plaintiff. 5. That according to the aforesaid compromise the E possession has been changed and now the plaintiff and defendant Nos.2 to 6 can get the entries corrected in their name in the revenue records well as in the relevant municipal record etc." 12. The said compromise petition was also accepted. It is F stated that pursuant to or in furtherance thereof, Raghbir Singh delivered possession of 2/3rd of the property in suit in favour of Respondent Nos.4 to 8 herein as also the appellant, retaining the 1/3rd thereof. The suit was decre.ed in part. G 13. Appellant filed an application before the Court of Additional District Ju.dge, Jagadhari questioning the compromise entered into by and between the plaintiff and the respondent Nos.1 to 3 pursuant whereto the said suit No.185 of 1989 was allowed to be withdrawn on the premise it had been H done without her knowledge and consent and despite the fact l, I lo ,.._ l l i I ~ - )<' \ ~ ~ ~ ( .,.... I )( ~ t }= .~ t r- SNEH GUPTA V. DEVI SARUP & ORS. 567 [S.B. SINHA J.] ~- that she had got vested rights therein in terms of the judgment A " and decree passed by the trial court in suit No.185 of 1989. It was furthermore contended that prior to acceptance of the said compromise, it was obligatory on the part of the learned Judge to issue notice upon the appellant and others who derived benefit under the said judgment and decree dated 30.10.1996 passed B in Suit No.185 of 1989. The learned Additional District Judge by an order dated 29.9.2005 accepted the said contentions of .I the appellant and set aside the compromise decree dated • 25.4.1998 opining that the same was illegal, null and void. 14. Applications under Article 227 of the Constitution of c India preferred thereagainst which were marked as C.R. 6473 • and 6588 and 6589 of 2005 have been allowed by a learned Single Judge of the High Court by reason of the impugned Judgment. D ~ 15. In these appeals, except Veena, all other children of Munni Devi supported the appellant, although they did not file any application for setting aside the said consent decree. 16. Mr. Jayant Bhushan, learned counsel appearing on E behalf of the appellant, would submit that the learned Additional Civil Judge, Senior Division, Jagadhari, having opined in its judgment and decre.e dated 30.10.1996 that not only Veena but -,,,: also the appellants and her other brothers and sisters were entitled to recovery of possession of the lands in suit, the F purported compromise entered into by and between the original plaintiff and the contesting defendants must be held to be illegal and without jurisdiction. The learned counsel submitted that for all intent and purport, the suit was filed by Veena in a representative capacity and, thus, in absence of other heirs and G legal representatives of Munni Devi, the compromise petition ,_ could not have been accepted. 17. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the respondent, on the other hand, would contend: H 568 A B c D E SUPREME COURT REPORTS --- [2009) 2 S.C.R. 1) In terms of Order XX.Ill Rule 1 of the Code of Civil Procedure, it is the privilege of the plaintiff alone to withdraw the suit at any stage of the proceedings and the appellant being only one of the defendants did not have any locus standi to object thereto. 2) Both the compromise petitions filed in Suit No.185 of 1989 and Suit No.303of1992 entered into by and between the parties should be treated to be a comprehensive one keeping in view the representative right, title and interest claimed by them in support of the properties involved in both the suits and in that view of the matter the appellant herein being a party to the compromise petition filed in Suit No.303 of 1992 and having accepted the benefit arising out of the same, is estopped and precluded from challenging the validity or otherwise of the compromise petition filed in Suit No.185 of 1989. 3) In any view of the matter, the appeal as against the respondent No.19 having been dismissed as his name was deleted at the risk and cost of appellant by order dated 25.3.2008 and the said order having attained fanility, this Court should not pass any order which would result in passing of inconsistent and contradictory decrees. F 18. Before adverting to the rival contentions of the parties, G H we may notice some provisions of the Code of Civil Procedure (the Code). Sub-rule (1) of Rule 1 of Order XXlll and Rule 3 of the Code read as under : "1. Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order • ' t y SNEH GUPTA V. DEVI SARUP & ORS. 569 [S.S. SINHA J.] . ·~ XXXll extend, neither the suit nor any part of the claim A shall be abandoned without the leave of the Court. xxx xxx xxx 3. Compromise of suit.-Where it is proved to the satisfaction of the Court that a suit has been adjusted B wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant ~ satisfies the plaintiff in respect of the whole or any part of • the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, c and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subjectmatter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit: Provided that where it is alleged by one party and dented D .... by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no · adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. E Explanation.-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9of1872), shall not be deemed to be lawful within the meaning of this )I rule." F 19. It is not a case where the original plaintiff applied for withdrawal of the suit similicitor. She did so relying on or on the basis of a compromise entered into by and between the parties. If a suit is to be decreed or dismissed on the basis of a compromise, even permission to withdraw the suit pursuant thereto, G ... in our opinion, order XXlll Rule 1 of the Code may not have any . _. application. Even in such a case, a permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit. The Court H r 570 SUPREME COURT REPORTS [2009] 2 S.C.R. A for the purpose of allowing withdrawal of a suit after passing the .... •<( decree, viz., at the appellate stage, is required to consider this aspect of the matter. Veena, although was a plaintiff, did not claim any exclusive title to the property in herself. She claimed title to the property as one of the daughters of Munni Devi. Interest B of the appellant and her other sisters and brothers also stood on the same footing. They also, for all intent and purport: could have independently maintained a suit either in their individual capacities or jointly. ~ • 20. The claim put forth by Raghbir Singh on the basis of c an oral 'hiba' purported fo have been made by Banu Mal before the Revenue authorities was found to be tainted with fraud. A finding of fact was arrived at that no s~ch transaction had taken » place as Banu Mal was seriously ill and had bee,,n residing at ·• &ome other place. The learned Trial Judge also arrhled at a D finding that before the Revenue Authorities, a misrepresentation had been made stating that. Banu Mal was issueless. y .. 21. Things as they stand now, there cannot be any doubt or dispute that the appellant is one:. of the heirs and legal E representatives of Banu Mal being a daughter of Munni Devi. She, therefore, indisputably was entitled to a share in the property of Munni Devi as one of her legal heirs. Even if Order XXlll, Rule 1 of the Code of Civil Procedure was applicable, in terms of Rule 1 A of the said Order, the appellant as a defendant in the suit could have applied for being transposed as a plaintiff )( F in terms of Order I Rule 10 of the Code of Civil Procedure and the Court was bound to pass an order having due regard to the question as to whether she had a substantial question to be decided as against any of the other defendants. Aappellant, indisputably, claimed and was found to have rightly claimed a G share in the suit property. ,,. ..... , Having got a decree in her favour, she was entitled to -4 protect the same. By reason of an agreement between some of the parties or otherwise, a litigant cannot be deprived from the H fruit of the decree. SNEH GUPTA V. DEVI SARUP & ORS. 571 [S.B. SINHA J.] • ;.. 22. Order XXlll, Rule 3 of the Code of Civil Procedure A provides that a compromise decree is not binding on such defendants who a(e-not parties thereto. As the appeal has been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been disposed of. B 23. The court has also a duty to prevent injustice to one of ... the parties to the litigation. It cannot exercise its jurisdiction to • allow the proceedings to be used to work as substantial injustice. A consent decree, as is well-known, is merely an agreement c between the parties with the seal of the court supetadded to if {See Baldevdas Shivlal and Another v. Filmistan Distributors (India) P. Ltd. and Others [(1969) 2 SCC 201], ParavvaAflavva Hittalamani v. Sri Paravva Gurulingayya Poojari and Ors. [JT 2007 (12) SC 352]}. D --.i 24. If a compromise is to be held to be binding, as is well known, must be signed either by the parties or by their counsel or both, failing which Order XXlll, Rule 3 of the code of Civil Procedure would not be applicable. E {See Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC 270]} ){ In Dwarka Prasad Agarwal (Dl By LRS. and Another v. B.D. Agarwal and Others [(2003) 6 SCC 230], this Court held: F ~ "32. The High Court also failed and/or neglected to take into consideration the fact that the compromise having been entered into by and between the three out of four partners could not have been termed as settlement of all disputes and in that view of the matter no compromise G - could have been recorded by it. The effect of the order. ~ dated 29~6-1992 recording the settlement was brought to the notice of the High Court, still it failed to rectify the mistake committed by it. The effect of the said order was grave. It was found to be enforceable. It was construed to H 572 SUPREME COURT REPORTS [2009] 2 S.C.R. A be an order of the High Court, required to be implemented -4 .. by the courts and the statutory authorities. 35 ... Even if the provisions of Order 23 Rule 3 of the Code of Civil Procedure and/or principles analogous thereto B are held to be applicable in a writ proceeding, the Court cannot be permitted to record a purported compromise in a casual manner. It was suo motu required to address itself to the issue as to whether the compromise was a ~ lawful one and, thus, had any jurisdiction to entertain the • same ... c {See also K. Venkatachala Bhat and Another v. Krishna Nayak (d) f>y LRs. and Others [(2005) 4 SCC 117]}. In R. Rathinavel Chettiar and Another v. V. Sivaraman and Others [(1999) 4 SCC 89], this Court opined : D "22. In view of the above discussion, it comes out that \< where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the ~uit so as to destroy that decree. The E rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested rights. The impugned judgment of the )I F High Court in which a contrary view has been expressed cannot be sustained." 25. It is also not a case where the compromise can be said to be a family arrangement. A family arrangement must be entered into by all the parties thereto. Compliance of the G requirements laid down in Order XXlll, Rule 3 of the Code of Civil Procedure is imperative in character. A compromise or ~ - satisfaction must satisfy the conditions of a lawful agreement. -4 26. Causes of action of both the suits furthermore were different. The subject matter of the suit was also different H although may be overlapping to some extent. If the compromise SNEH GUPTA V. DEVI SARUP & ORS. 573 [S.B. SINHA J.] It' ,.. entered into by and between the parties to Suit No. 303of1999 A was to be given effect to, the same for all intent and purport clearly goes to show that Bhanu Mal had the title over the property. The learned Trial Judge in Suit No.185 of 1989 having found that Bhanu Mal did not pass his title by way of oral Hiba/ gift in favour of Raghbir Singh, subject to the conditions in the B Will, his title must be held to have been accepted. Bhnau Mal, therefore, could dispose of his property in accordance with law. j If Raghbir Singh did not acquire any title by reason of oral Hiba, .. on his death, subject to proof of compliance of the terms of the Will, the same must be held to have vested in Munni Devi and c on her death upon her children. 27. Title to a property must be determined in terms of the statutory provision. If by reason of the provisions of the Hindu Succession Act, 1956 the appellanfherein had derived title to the property along with her brothers and sisters, she cannot be D deprived thereof by reason of an agreement entered into by and between the original plaintiff and the contesting defendants. If a party furthermore relinquishes his or her right in a property, the same must be done by a registered instrument in terms of the provisions of Indian Registration Act. E 28. It is also well known that a suit cannot be withdrawn by a party after he acquires a privilege. In R. Ramamurthy Ayer v. ,. Raja V. Rajeswara Rao [(1972) 2 SCC 721], this Court held: "12. Coming back to the question of withdrawal of a suit F in which the provisions of Sections 2 and 3 of the Partition Act have been invoked we find it difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under Section 2 of the Partition Act and the defendant has G • applied to the court for leave to buy at a valuation the ~ share of the plaintiff under Section 3. In England the position about withdrawal has been stated thus, in the Supreme Court Practice, 1970 at p. 334: "Before Judgment.- Leave may be refused to a plaintiff H 574 SUPREME COURT REPORTS [2009] 2 S.C.R. A to discontinue the action if the plaintiff is- not wholly dominus ~ 'i' litis or .if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him." B As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under Section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and ~ after gettin-g the same done tq~offer to sell the same to 4 such shareholder at the valyation so made. This advantage, c ,, ...._. - -- which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share D of the plaintiff in accordance with the provisions of Section 3(1) it would only enable the plain~iff to defeat the purpose of Section 3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property E under Section 2 instead of pa_rtitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeatthe defendant's claim which, according to Crump J., cannot be don_e even in a suit where the provisions ofthe Partition Act have not ,. F bee0; invoked." Yet again in R.Hathinavel Chettiar v. V.