R.L. Khurana, J.@mdashThis Second Appeal at the instance of the defendants has been directed against the judgment and decree dated 29.4.1989 of the learned Additional District Judge, Mandi, reversing the judgment and decree dated 25.9.1985 of the learned Sub-Judge Ist Class, Sarkaghat, and thereby granting a decree for permanent injunction in favour of the Respondents/Plaintiffs thereby restraining the defendants from interfering with the ownership and possession of the Plaintiffs over the land measuring 4-12-15 bighas comprising of khewat/khatoni No. 15 min/36 min, Khasra No. 611 of village Bakarta, Illaqa Suranga, Tehsil Sarkaghat, District Mandi (hereinafter referred to as the land in dispute).
2. The Plaintiffs by claiming themselves to be the exclusive owners and in possession of the land in dispute by way of a private partition, filed a suit for permanent injunction for restraining the defendants No. 1 to 30 from interfering with their ownership and possession qua the land in dispute. It was averred that the defendants without any right, title or interest have started interfering with the ownership and possession of the Plaintiffs.
3. The defendants resisted the suit. Though they admitted the ownership of the Plaintiffs and proforma defendant No. 31, they denied the private partition and averred that the land in dispute continued to be joint of the Plaintiffe and defendant No. 31. They also claimed that they are having customary rights to take earth from the land in dispute for pottery purposes. In the earlier suit between the parties, a compromise was arrived at whereby the Plaintiffs and proforma defendant No. 31 had acknowledged the customary rights of the Plaintiffs in the land in dispute. It was further pleaded that the Plaintiffs were estopped from filing the suit and that the suit was bad on account of absence of cause of action as also was hit by principles of res-judicata and under Order 2, Rule 2, Code of Civil Procedure.
4. On the pleadings of the parties, following issues were framed by the learned trial Court on 23.8.1977, 19.6.1980 and 28.12.1981:
1. Whether the suit is barred by principle of res judicata? OPD
2. Whether there is no cause of action for the Plaintiffs to file the present suit? OPD
3. Whether the Plaintiffs are estopped from filing the suit as alleged? OPD
4. Whether the suit is barred by Order 2, Rule 2 CPC as alleged? OPD
5. Whether the suit land is possessed by the Plaintiffs to the exclusion of defendants as alleged? OPP
5A. Whether there has been a private partition between the Plaintiffs and proforma defendant as alleged? OPP
6. Whether the defendants have acquired customary rights qua the suit land as alleged? OPD
7. Relief.
5. The learned trial Court found issues No. 1, 3, 4 and 6 in favour of the defendants while issue No. 6 was found against the Plaintiffs. Issue No. 2 was decided against the defendants. While deciding issue No. 5 in favour of the Plaintiffs, the learned Trial Court came to the conclusion that though the Plaintiffs are the owners and in possession of the. land in dispute, their ownership and possession was subject to the customary rights of the defendants to take earth from the land in dispute. Consequent upon such findings, the suit of the Plaintiffs was dismissed by the learned trial Court vide judgment and decree dated 25.9.1985.
6. In appeal preferred by the Plaintiffs, the learned Additional District Judge set aside the findings of the learned trial Court on all the issues and after holding the Plaintiffs to be the owners and in possession of the land in dispute granted a decree for permanent injunction in favour of the Plaintiffs as prayed for by them.
7. At the very out-set, it will not be out of place to mention certain admitted facts. On a previous occasion, the Plaintiffs had filed a suit against the defendants in respect of land comprising of Khasra No. 1665 which is adjacent to the land in dispute for permanent injunction. Such suit was decided by the learned Senior Sub-Judge, Mandi, on 27.10.1967. In the appeal preferred by the defendants, the parties arrived at a compromise before the learned District Judge, Mandi and consequently a compromise decree was passed on 18.3,1969. In such compromise the customary rights of the defendants to take earth from land comprising of Khasra No. 611 was recognised and the Plaintiffs agreed not to interfere with such rights of the defendants.
8. The suit out of which the present appeal has arisen was filed on 5.5.1976, that is, after more than seven years of the earlier compromised decree. In the present suit for permanent injunction, no challenge has been laid to the earlier compromise or the decree passed on 18.3.1969 on the basis of such compromise. In fact the Plaintiffs have made no reference to the previous litigation between the parties and the compromise arrived at therein.
9. The first substantial question of law arising in the present case is - whether the suit of the Plaintiffs out of which the present appeal has arisen was barred by the provisions of Order 23, Rule 3-A, Code of Civil Procedure, estoppel and res-judicata and under the provisions of Order 2, Rule 2, Code of Civil Procedure?
10. Ex. D-l is the copy of the judgment dated 18.3.1969 of the learned District Judge, Mandi, passed oft the basis of compromise between the parties, while Ex. D-2 is the copy of the decree passed in respect thereof.
11. Rule 3-A of Order 23, Code of Civil Procedure, provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.
12. As stated above, no challenge has been laid by the Plaintiffs to the decree Ex. D2. Nor it is the case of the Plaintiffs that the compromise on which the decree Ex. D-2 is based was not lawful. Therefore, the present suit cannot be said to be barred under Rule 3-A Order 23, Code of Civil Procedure.
13. The learned Counsel for the defendants during the course of hearing readily conceded that the suit would also not be hit by the provisions of Order 2, Rule 2, Code of Civil Procedure.
14. The Supreme Court in
...The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide anything. Nor can it be said that a decision of the Court was implicit in it. Only a decision by the Court could be res judicata, whether statutory u/s 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests....
15. It was further held that the decree based on compromise might create an estoppel by conduct between the parties but a plea as to estoppel must be raised.
16. Following the above ratio, it can be safely held that the compromise decree Ex. D-2 would not operate as re judicata, and the suit of the Plaintiffs out of which the present appeal has arisen would not be barred on this score.
17. Insofar as the question of estoppel is concerned, the defendants had specifically raised the plea as to estoppel and an issue, being issue No. 3 was framed on such plea. The learned trial Court decided this issue against the Plaintiffs by holding that the Plaintiffs were estopped from filing the present suit and denying the customary rights of the defendants which were acknowledged and admitted vide compromise on the basis of which decree Ex. D-2 was passed. The learned Additional District Judge while setting aside the judgment and decree of the learned trial Court did not go into the question of estoppel.
18. It may be stated that the present Plaintiffs and proforma defendant No. 31 were the Plaintiffs in the earlier suit. They were the Respondents before the learned District Judge. The compromise decree Ex. D-2 was passed on the basis of the statement made by proforma defendant No. 31 Nand Lal. Copy of such statement is Ex. D-3 wherein he had categorically admitted the customary rights of the defendants to take earth for pottery purposes from the land in dispute.
19. It was contended on behalf of the Plaintiffs that they were not parties to the compromise on the earlier suit and that the admission made by proforma defendant No. 31, their co-Plaintiff in the earlier suit is not binding on them and as such, neither such admission nor the decree Ex. D-2 would operate as an estoppel as against them.
20. In
The general rule is that an admission can only be given in evidence against the party making it and not against any other party. In general, the statements of defence made by one defendant cannot be read in evidence either for or against his co-defendants, the reason being as there is no issue between the defendants, no opportunity for cross-examination is afforded. But this rule has no application to cases where the co-defendants have joint interest. It is not by virtue of a person''s relationship to the litigation that the admission of one can be used against the other. It must be because of some privity of title or of obligation.
21. The abovesaid ratio was again reiterated by a Division Bench of the Orissa High Court in
...It is not by virtue of a person''s relationship to the litigation that the admission of one can be used against the other. It must be as used because of some privity of title or of obligation. In order to utilise the statement of defendants 6 to 8 against defendants 1 to 3, the Plaintiff has to establish that they were all persons jointly interested in the disputed property....
22. In Paras Ram v. Dayal Das and Ors. AIR 1965 HP 32, the above said ratio was approved and followed.
23. In the present case, admittedly the Plaintiffs and proforma defendant No. 31 were the joint owners of the land in dispute at the time admission as to the customary rights of the defendants came to be made by proforma defendant No. 31 during the previous litigation vide Ex. D-3. Therefore, there was a privity of title between the Plaintiffs and proforma defendant No. 31 and as such the admission made by proforma defendant No. 31 vide Ex. D-3 and on the basis of which a decree Ex. D-2 came to be passed can be used as evidence against the Plaintiffs as well.
24. On the basis of the admission so made, the present defendants had not pressed their appeal before the learned District Judge and the decree Ex. D-2 came to be passed. Such admission of the customary rights of the defendants would estop the Plaintiffs from denying the rights of the defendants in the land in dispute. Therefore, the suit out of which the present appeal has arisen would be barred by principle of estoppel.
25. A contention was raised on behalf of the Plaintiffs that there was no privity of title between them and the proforma defendant No. 31 inasmuch as there had been a private partition in the year 1968 much before the admission made by proforma defendant No. 31 and that by virtue of such private partition by way of family arrangement; the land in dispute had fallen to the share of the Plaintiffs.
26. Be it stated that in the previous litigation in which compromised decree Ex. D-2 came to be passed, the Plaintiffs and proforma defendant No. 31 had claimed themselves to be the joint owners of the land in dispute. The partition alleged to have taken place was never pleaded by them. They were the co-Plaintiffs and had filed the suit jointly. Therefore, their interest was joint and there was a privity of title as between them.
27. The subsequent partition if any will have no effect either on the admission or on the customary rights of the defendants, It is significant to note that in the revenue record the land in dispute continued to be shown as under the joint ownership of the Plaintiffs and proforma defendant No. 31.
28. As a result, the present appeal is allowed. The judgment and decree of the learned Additional District Judge are, therefore, set aside and that of the learned Trial Court restored. The parties are left to bear their own costs.
