Birendra Nath Roy Vs Biswanath Mondal and Others

S.N. Sanyal, J.@mdashThis revisional application is at the instance of the decree holder and it directed against orders 18 and 19 dated January 3, 1981 in J. Misc. Case No. 11 of 1980 in the Court of the learned Munsif, Garbeta. It is alleged by the petitioner that the petitioner is the owner of 51 acres of land in Plot No. 433, Mouza Upar Kuain, P.S. Keshpur and he along with his brother Amarendra Nath Ray, since deceased, was the owner of 31 acres of land in Plot No. 168, Mouza Tal Kuain, P.S. Keshpur and they were in khas possession since 1958. In 1969 the petitioner and his brother were dispossessed from the said land by the opposite parties 1 to 5 who claimed themselves as bargadars. The petitioner and his brother instituted Title Suit No. 275 of 1970 in the Court of the learned Munsif at Garbeta against opposite parties 1 to 5 for declaration of title to the said land, for declaration that the opposite parties 1 to 5 had no barga rights therein, for recovery of possession and permanent injunction. The said suit was decreed on July 14, 1975 when the plaintiffs and the defendants of the said suit put in two solenamas whereby the opposite parties 1 to 5 acknowledged in writing the claims and rights of the plaintiffs. Opposite parties 1 to 5 categorically admitted that their deceased father and husband Abhoy Mondal, who had been a bargadar in respect of the suit land died on December 22, 1958 and after the death of Abhoy Mondal the plaintiffs took khas possession of the suit land and started cultivation therein by their own plough and men and the opposite parties 1 to 5 were never bargadars. The petitioner put the said decree into execution in Title Execution Case No. 4 of 1976 and got possession of the suit land through court on April 21, 1976. The petitioner was in possession of the property since the decree in Title Suit no, 275 of 1970. The opposite parties 1 to 5 Were trying to disturb the possession of the petitioner. The petitioner on August 16, 1979 started Title Execution Case No. 5 of 1979 praying for orders directing the opposite parties to be detained in civil prison, for attachment and sale of properties of the opposite parties on the allegation that the opposite parties 1 to 5 had wilfully violated the order of permanent injunction. The Junior Land Reforms Officer, Keshpur on the recommendation of the Land Reforms Advisory Committee and the Panchayat Samity of Keshpur decided that the opposite parties 1 to 5 were bargadars of the disputed land. The petitioner moved this Court by an application under Article 226 of the Constitution and on September 18, 1979 this Court was pleased to issue a Rule being Civil Rule No. 10530 (W) of 1979 and grant an interim order in terms of the prayers therein. The said Civil Rule is still pending. On March 3, 1980 opposite parties 1 to 5 filed a petition of objection in Title Execution Case No. 5 of 1979 contending that the decree in Title Suit No. 275 of 1970 was fraudulent and void and that they were bargadars of the suit land and were in possession all along as such. On January 3, 1981 the opposite parties filed two applications, one for the stay of the execution proceedings and the other for reference u/s 21 (3) of the West Bengal Land Reforms Act (hereinafter referred to as the Act). The learned Munsif without giving an opportunity to the petitioner to put any written objection held that as there was no previous order of the proper authority as to whether the opposite parties were bargadars or not, the matter should be referred to the appropriate authority for determination of the question raised u/s 21 (3) of the Act. Being aggrieved, the petitioner has obtained the present Rule.

2. Mr. Sengupta, learned Advocate for the petitioner, has raised several contentions. It has been argued that as Title Suit No. 275 of 1970 was decreed on compromise, no question as to whether the defendants of that suit were bargadars or not was to be decided. The petitioner got possession of the property in execution of the decree and the present execution case has been filed on the ground that there was violation of the decree for permanent injunction. The only question before the learned Munsif was whether there was violation of the decree for permanent injunction. Mr. Sengupta has argued that the opposite parties could raise the contentions in Title Execution Case No. 4 of 1976 when the petitioner sought for possession of the suit property. The opposite parties are not now entitled to raise any contention that they are bargadars. In such circumstances, the learned Munsif was wrong in holding that in the instant execution case the question arose as to whether the opposite parties were or were note bargadars. The learned Munsif thus acted illegally and with material irregularity in referring the matter u/s 21(3) of the Act. No question arises in the present execution case to attract the provisions of section 21(3) of the Act.

3. Mr. Sengupta has argued that the executing court cannot go behind the decree and in view of the clear terms of the consent decree the learned Munsif had no jurisdiction to consider the contention of the opposite parties that they were bargadars. In support of his argument, Mr. Sengupta has referred to Bank of Bihar Ltd. v. Sarangdhar Singh & anr-(A.I.R. 1948 PC 8). It has been held in this decision that an execution court cannot go behind the decree and question its correctness; but when the decree is silent, and gives no indication as to what property should be sold in execution, it is permissible for the court to look into the judgment in order to find out whether upon any issue properly raised and determined as between the parties interested the property brought to sale has been held to belong to the judgment debtor. Mr. Sengupta has referred to Full Bench decision of Kerala High Court in George Vs. Thekkekkara Vareed, . This decision dealt with section 125 of the Kerala Land Reforms Act. It has been held that a matter which had become res judicate cannot be said to arise so as to be referred to the Tribunal u/s 125(3).

4. Referring to Noor Mohd. Khan Ghouse Khan Soudagar Vs. Fakirappa Bharmappa Machenahalli and Others, , Mr. Sengupta has argued that simply because the opposite parties have raised the plea that they were bargadars, the matter should not be referred. The court must be satisfied that an issue as to whether the opposite parties were bargadars or not arises before it could be referred u/s 21(3). This decision dealt with Karnataka Land Reforms Act, 1962. It has been held that where in execution of a partition decree actual possession was sought and the respondent claimed that he was a tenant of the property and he could not be evicted it was held that the issue could be decided by the authorities under the Act and the Civil Court''s jurisdiction was barred. It has been further held that it is not correct to say that whenever the defendant raised the plea that he was a tenant, the matter should be referred to the Tribunal. The position of law is that even though the defendant pleads that he is a tenant, the court must be satisfied that an issue whether the defendant is a tenant or not arises before it could be referred for determination by the Tribunal and the question of jurisdiction will not be decided mainly on the plea of defendants. Mr. Sengupta thus argues that the impugned orders of the learned Munsif are bad in law as the learned Munsif acted illegally and with material irregularity and the petitioner has suffered irreparable injury as the learned Munsif has failed to appreciate the question that remained to be decided in the execution case.

5. Mr. Roy, the learned Advocate for the opposite parties, has argued that the issue was whether the opposite parties were bargadars. This issue can be raised in the present execution case as the decree on compromise was without jurisdiction. The contention of Mr. Roy is that the court under Order 23 Rule 3 of the CPC can record a compromise and pass a decree thereon only when the agreement is lawful. In view of the contentions raised in Title Suit No. 275 of 1970 the petition of compromise was against the statute and as such the learned Munsif had no jurisdiction to record the compromise and pass a decree.

6. Referring to Pulavarthi Venkata Subba Rao and Others Vs. Valluri Jagannadha Rao and Others, , Mr. Roy has argued that a compromise decree is not a decision by the court. A compromise decree is merely an agreement between the parties on which the seal of the court is placed.

7. Mr. Roy has also referred to Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, and has argued that a consent decree does not operate as res judicate because a consent decree is merely a record of a contract between the parties to a suit, to which is superadded the seal of the court. The contention of Mr. Roy is that the consent decree in which the opposite parties were alleged to have admitted that they were not bargadars would not operate as res judicate and it will be open to the opposite parties to contend in the present execution case that the execution case is not maintainable and the decree was without jurisdiction. According to Mr. Roy, as the question arises between the parties whether or not the opposite parties are bargadars, the learned Munsif was correct in referring the question u/s 21(3) of the Act to the officer or authority mentioned in sub-section (1) of section 18 of the Act for decision.

8. The petitioner Birendra Nath Roy and his brother Amarendra Nath Roy, since deceased, instituted Title Suit No. 275 of 1970 on August 3, 1970 against the opposite parties for declaration of title to the suit land, for declaration that the defendants of the said suit had no barga right therein, for recovery of possession and for permanent injunction. Opposite parties 1 and 2 filed a petition of compromise and opposite parties 3 to 5 filed another petition of compromise. The suit was decreed on compromise on July 14, 1975 and the petitions of compromise were made parts of the decree. According to the petitions of compromise, the plaintiffs'' title was declared and the defendants admitted that they had no barga right in the suit property. The plaintiffs were entitled to confirmation of possession and, if necessary, to recover of possession and there was a decree for permanent injunction.

9. Mr. Roy has argued that the defendants in the said suit claimed barga right. The plaintiffs also prayed for declaration that the defendants had no barga right in the suit property. According to Mr. Roy, in view of the provisions of the Land Reforms Act, a Civil Court has no jurisdiction to determine whether or not the defendants were bargadars. Mr. Roy argues that, in such circumstances, it was beyond the competence of the Civil Court to record the compromise which was against the provisions of the Act; as such, the decree was without jurisdiction. Mr. Roy argues that in view of Order 23 Rule 3 C.P. Code, it was necessary for the Court to determine before recording the compromise that the agreement was lawful. There is nothing in the order recording the compromise to show that the learned Court did not consider whether the agreement was lawful.

10. Mr. Roy has further argued that though the Court had no jurisdiction to declare that the defendants were not bargadars but the compromise decree in effect does the same. As such the opposite parties were entitled to contend in the execution case that the decree was without jurisdiction.

11. Mr. Sengupta argues that when the defendants admitted the claim of the plaintiff and also admitted that they were never bargadars, no question whether they were bargadars or not arose for decision before the Trial Court. The provisions of section 21 of the Act were thus not attracted.

12. On a consideration of the materials on record, it appears that the contention of Mr. Roy is of substance. According to Order 23 Rule 3 C.P. Code, where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the Court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. It thus appears that before recording the compromise the Court must be satisfied that the suit has been adjusted wholly or in part by any lawful agreement or compromise. The matter pending before the Court was not only for declaration of plaintiffs'' title and confirmation of possession and injunction but also for a declaration that the defendants were not bargadars. Sub-section (3) of section 21 was inserted by the West Bengal Land Reforms (Amendment) Act, 1974, that is, when the suit was pending. It has been held in Raich. Ali Khan v. Hazi Sadak All Sk. and others 1977(2) C.L.J. 1 that the provisions of sub-section (3) of section 21 of the West Bengal Land Reforms Act, 1955 as amended apply to pending proceedings before any Civil or Criminal Court. According to section 21(3), if any question as to whether a person is or is not a bargadar arises in the course of any proceedings before any Civil or Criminal Court, the Court shall refer it to the officer or authority mentioned in sub-section (1) of section 18 for decision. Section 21(3) of the Act thus was applicable to Title Suit No. 275 of 1970. The Court thus had no jurisdiction to decide the question whether the defendants of the said suit were or were not bargadars.

13. In the case of Pulavarthi Venkata Subba Rao and Others Vs. Valluri Jagannadha Rao and Others, it has been laid down that a compromise decree is not a decision by the Court. It is the acceptance by the Court of something to which the parties had agreed. A compromise decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that the decision of the Court was implicit in it. The compromise decree thus cannot operate as res judicata. Such a decree might create an estoppel by conduct between the parties, but such an estoppel must be specifically pleaded.

14. In Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, it has been held that a consent decree does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court. A matter in contest in a suit may operate as res judicata only if there is adjudication by the Court.

15. The compromise decree thus does not operate as res judicata and the opposite parties are entitled to contend that the decree passed in Title Suit No. 275 of 1970 was against law and thus the Court had no jurisdiction to pass the same. The opposite parties raised the plea in the present execution case that they were in possession of the suit land as bargadars. Execution case is a proceeding before a Civil Court within the meaning of section 21(3) of the Act and the question arose before the executing court whether or not the opposite parties were bargadars. In such circumstances, the learned Munsif was justified in referring the matter to the appropriate authority for determination whether the judgment debtors were bargadars or not in respect of the suit property. There was no jurisdictional error on the part of the learned Court below and there is no reason to interfere with the impugned orders in the present Rule. The revisional application thus fails and the Rule is discharged. There will be no order as to costs.

Let the records be sent below forthwith.