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Tulsan v. Pyare Lal And Others
Factual and Procedural Background
The litigating parties are co-sharers of ancestral property. Respondent 1 filed an earlier suit for permanent injunction against Bir Singh (Respondent 3) and the present appellant (wife of Respondent 2). During that suit the parties executed a written compromise dated 11-8-1986, which was accepted by the court and incorporated into a consent decree. Under the compromise each side retained possession of its existing abadi; the remaining land was to be divided in three equal shares, with one bigha from Bir Singh’s share going to Respondent 1, and all existing criminal and civil proceedings were to be withdrawn.
After the decree, Respondents sought mutation before the Revenue Authorities, who refused on the ground that the compromise decree did not expressly declare title. Respondent 1 then instituted a second suit seeking declarations of ownership and consequential injunctions; the appellant filed a counter-claim. The trial court dismissed the suit and allowed the counter-claim. On appeal, the first appellate court reversed, decreeing ownership in favour of Respondent 1 and dismissing the counter-claim. In second appeal the High Court of Himachal Pradesh partly modified the decree, declaring the appellant owner of 7,191.94 sq. m. “less one bigha” and restraining Respondent 1 from interfering with that land.
The appellant’s special-leave petition was withdrawn to pursue review; the High Court dismissed the review. The matter came before the Supreme Court in the present civil appeal.
Legal Issues Presented
- Whether the second suit for declaration filed by Respondent 1 was barred by Section 47 of the Code of Civil Procedure because the issues had already been settled by the earlier consent decree.
- Whether the High Court erred in upholding the maintainability of the second suit and in directing transfer of one bigha of land from the appellant to Respondent 1 despite the earlier decree.
Arguments of the Parties
Appellant's Arguments
- The second suit was not maintainable owing to the bar contained in Section 47 CPC; all questions relating to execution or satisfaction of the earlier decree had to be dealt with in execution proceedings, not through a fresh suit.
- The High Court ignored the binding nature of the consent decree and thereby committed an error apparent on the face of the record.
Respondents' Arguments
- The High Court’s judgment was correct and should be affirmed.
- A fresh declaratory suit was necessary because the Revenue Authorities refused mutation on the strength of the consent decree alone.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Venkata Reddi v. Pothi Reddi, 1963 Supp (2) SCR 616 / AIR 1963 SC 992 | A preliminary or consent decree is final and conclusive on matters it decides; such finality is unaffected by its executability. | Relied upon to treat the compromise decree as a final, binding determination of parties’ rights, foreclosing a subsequent suit on the same subject-matter. |
| Uma Shanker v. Sarabjeet, (1996) 2 SCC 371 | A fresh suit may lie where a distinct, subsequent cause of action (e.g., dispossession after decree) arises. | Distinguished as inapplicable; no new cause of action arose here, so Section 47 barred the second suit. |
Court's Reasoning and Analysis
The Supreme Court noted that although the initial suit was for injunction, the compromise embodied a complete partition arrangement and therefore operated as a preliminary decree in a partition suit. Such a decree is final on the issues it covers and binds the parties until set aside. Under Section 47 CPC, any question relating to execution, discharge or satisfaction of that decree had to be addressed in the executing court; commencing a fresh declaratory suit was therefore prohibited.
The Court emphasized that a consent decree under Order 23 Rule 3 CPC is not limited to the original reliefs claimed; its contractual terms have full force of a decree. The respondents could have pursued execution measures—such as preparation of a final decree, measurement, and delivery of possession—or sought directions binding on the Revenue Authorities, but they could not circumvent the decree through new litigation.
The High Court, in partly upholding the respondents’ declaratory suit, failed to apply these principles and thereby committed an error apparent on the face of the record. Its order requiring the appellant to transfer one bigha from the 7,191.94 sq. m. previously decreed to her conflicted with the earlier consent decree and the subsequent decree in Suit No. 113/1/1987 that had affirmed her title to the entire 7,191.94 sq. m.
Holding and Implications
Appeal Allowed. The Supreme Court set aside the judgments that had entertained the second suit, reaffirming the binding effect of the 1986 consent decree. The respondents are granted liberty to apply in the executing court for measurement and division of land in accordance with that decree. The Court also declared that the consent decree is binding on the Revenue Authorities. No order as to costs.
Implications: The decision reinforces that parties cannot relitigate matters settled by a consent decree; all disputes over implementation must be resolved through execution proceedings under Section 47 CPC. The ruling does not create new precedent but re-affirms existing principles governing the finality and enforceability of consent decrees.
S.B Sinha, J.— Leave granted.
2. The parties are co-sharers. Respondent 1 herein filed a suit against Bir Singh, Respondent 3 as also the appellant herein for permanent injunction. The appellant is wife of Respondent 2. A settlement was arrived at by and between the parties. The terms of the settlement were reduced to writing. It was filed before the court and accepted. A decree was passed on the basis of the terms of the said settlement. It was recorded therein:
“… Now, the Panchayat has settled the disputes amongst the parties to the effect that the portion where there is abadi and which is in the possession of whichever party, has been given to the same party and that there is no objection to the second party in this regard nor shall there be any objection in the future also. Apart from this it has been decided that the 1/3rd portion of the remaining lands shall go to Pyare Lal and 1/3rd portion shall go to Amrit Pal and Mohan Lal and Ved Prakash, sons of Kewal, grandsons of Bir Singh and the 1/3rd share shall go to Bir Singh, son of Shri Asa Ram. It has been further decided that all the criminal and civil cases going on between the parties shall be withdrawn and they shall be bound by the same. Apart from the above, the will executed earlier shall be treated as cancelled and a new will shall be executed in the light of the above decision. All the three parties shall bear the expenses in equal shares, for which none of the parties shall have any objection. It has been further decided that out of the portion given to Bir Singh, one bigha of land shall be given to Pyare Lal and to which proposal all the parties have agreed. Apart from this none of the parties shall fight/dispute with regard to the aforesaid properties in future….”
3. Pursuant to or in furtherance of the said consent decree, the respondents allegedly moved the Revenue Authorities for mutation of their names. The same was denied on the ground that by reason of the said consent decree the right, title and interest of the respondents had not been declared.
4. A second suit, therefore, was filed for declaration. A counterclaim was also filed by the appellant. The plaint was amended. In the plaint it was stated:
“That Defendant 2, Tulsan, instituted suit against Bir Singh and Kewal Ram, defendants on 22-4-1987 about the land bearing Khasra Nos. 39, 57, 38, 45, 46, 47, 52, 53, 54, 55, 56 and 376, total area 7191.94 sq. m. by leaving the land in dispute as was settled in between the parties in the earlier suit as stated above. Although the suit filed by Tulsan against Bir Singh and Kewal Ram was collusive in nature yet the plaintiff has no cudgel with the land as stated above which she got in a collusive decree from Bir Singh and Kewal Ram, because the defendants have already admitted the plaintiff to be the owner in possession of the land in suit along with one bigha of land out of the land fallen at that time to the share of Bir Singh, defendant as mentioned in its para of the plaint.”
5. The reliefs claimed in the said suit inter alia were as under:
“(i) That the plaintiff may kindly be declared as owner in possession of the property mentioned in para 1 of the plaint as well as mentioned in para 6 of the plaint.
(ii) That the defendants may kindly be restrained permanently from claiming any right, title and interest in the property in suit and from interference of any nature in the property in suit. The revenue record be also ordered to be recorrected and made up to date as per judgment and decree of this land by substituting the name of the plaintiff in column of ownership.
(iii) That the defendants be restrained from interfering in any manner in the passage existing on Khasra No. 53. In case the defendants succeeded in blocking the path at the end of Khasra No. 57 and to the beginning of Khasra No. 53 during the pendency of the suit then in that event in the alternative the decree for mandatory injunction be passed by giving directions to the defendants to remove the blockade of the path/passage at the end of Khasra No. 57 and to the beginning of Khasra No. 53 which is the only connecting path to the house of the plaintiff which is also depicted in the revenue record itself and for a decree for mandatory injunction directing Defendant 1 to execute the will and honour the compromise Ext. PA and further relief in the failure of Defendant 1 to execute the document, the order be issued to the court official to execute the same on behalf of Defendant 1; or any other relief which may become due on the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendants with costs.”
6. A contention was raised in the written statement that the said suit was not maintainable in view of the provisions contained in Section 47 of the Code of Civil Procedure.
7. The learned trial Judge while dismissing the said suit allowed the counterclaim. The appeal preferred thereagainst was, however, allowed by the appellate court stating:
“In view of the above finding, both the appeals are accepted and the judgment and decree under appeals are set aside. Consequently, the suit of the appellant-plaintiff is decreed and it is hereby declared that he is the owner in possession of the suit land and the defendants are restrained from interfering in his possession over the suit land in any manner whatsoever. The prayer for issuance of permanent prohibitory injunction with respect to the alleged path existing on Khasra No. 57 is, however, dismissed, as no evidence has been led by the plaintiff in support of the plea that he has the right to pass through Khasra No. 57 for approaching his abadi. The counterclaim of the defendants is dismissed in its entirety. Decree sheet be drawn accordingly. The original judgment be placed on the record of Appeal No. 11-NL/13 of 1993 while its authenticated copy be placed on the other Appeal No. 12-NL/13 of 1993. Record be completed and consigned to the record room. The lower court's record be returned with a copy of this judgment.”
8. In the second appeal filed by the appellant before the High Court of Himachal Pradesh, Shimla, the following questions of law were framed:
“1. Whether the first appellate court has misread and misinterpreted the oral and documentary evidence on record, especially Ext. PW 2.A, the compromise to arrive at its findings?
2. Whether the parties had entered into a valid compromise Ext. PW 2.A, if yes, whether the suit is not maintainable in view of this compromise?”
9. It was partly allowed stating:
“The plaintiff had rightly instituted the suit. Both the substantial questions of law are answered accordingly.
Though the Addl. District Judge has dismissed the counterclaim of the defendants in toto, yet this Court finds that the plaintiff had only claimed one bigha of land out of 1/3rd share of Bir Singh which was kept by him for himself. The plaintiff is not aggrieved by the decree passed in favour of Defendant 2 Smt Tulsan Devi in respect of land measuring 7191.94 square metres, as defined hereinabove. Therefore, the impugned decree and judgment is modified to the extent that the counterclaim of the defendants is partly allowed and Defendant 2 Smt Tulsan Devi is declared absolute owner in possession of the abovementioned land measuring 7191.94 square metres, except one bigha of land, which was given to the plaintiff as per compromise Ext. PW 2.A and the plaintiff is restrained from interfering in her possession over the said land.
In the result, the appeal RSA No. 151 of 1994 which is against the dismissal of the counterclaim is partly allowed as indicated hereinabove whereas the other appeal RSA No. 150 of 1994 is dismissed. There is no order as to costs.”
10. A special leave petition filed by the appellant was allowed to be withdrawn with liberty to file a review petition. The review petition filed by the appellant was dismissed observing:
“There is no denying that pursuant to the compromise dated 11-8-1986, only 1/3rd share in the estate was left with the deceased Bir Singh. Therefore, he could have given the property only to that extent to Defendant 2 Smt Tulsan Devi.
It appears that after the compromise which was arrived at between the parties on 11-8-1986, a suit was filed by Smt Tulsan Devi claiming herself as the owner and in possession of the land measuring 7191.94 sq. m. In this suit, the deceased Bir Singh was impleaded as Defendant 2. The plaintiff was not a party to that suit. The said suit was decreed in favour of Defendant 1 Smt Tulsan Devi on the basis of her claim having been admitted by deceased Bir Singh. Assuming that the defendant-petitioner Smt Tulsan Devi got the land measuring 7191.94 sq. m. from Bir Singh and proceeding on the assumption that the land to this extent had fallen to the share of Bir Singh consequent upon the compromise dated 11-8-1986, Bir Singh could not have given the entire land to the defendant-petitioner Smt Tulsan Devi since one bigha therefrom was to go to the plaintiff in terms of the compromise dated 11-8-1986.
In view of the said fact, the learned Single Judge vide judgment dated 27-9-2002 has rightly declared the defendant-petitioner Smt Tulsan Devi to be the owner and in possession of the land measuring 7191.94 sq. m. less one bigha of land which was given to the plaintiff as per compromise dated 11-8-1986.”
11. Mr R. Sundaravardan, learned Senior Counsel appearing on behalf of the appellant would submit that the impugned order cannot be sustained as the High Court failed to notice the clear mandate of law that the suit was not maintainable in view of Section 47 of the Code of Civil Procedure.
12. The learned counsel for the respondents, on the other hand, supported the judgment.
13. The respondents had filed a suit. It may be a suit for injunction, but therein, the parties resolved their disputes and differences. A compromise petition was filed. A decree was passed in terms thereof. The parties were bound thereby. A consent decree in terms of Order 23 Rule 3 of the Code of Civil Procedure need not be confined only to the reliefs prayed for. It may not be confined to the subject-matter of the suit. Although the consent decree was passed in a suit for injunction, for all intent and purport it was a preliminary decree passed in a suit for partition. A fresh proceeding could not be initiated for giving effect thereto, even if the respondents' contention that their right to possess under the consent decree was not found to be enforceable by the Revenue Authorities, was to be accepted. A consent decree, it is trite, remains valid unless it is set aside. It would be binding on the parties. Although, the principles of res judicata stricto sensu would not apply, the principles of estoppel would. In the plaint it was accepted that a compromise decree was passed. The High Court while passing its judgment in the second appeal also noticed the same. Thus, in the subsequent suit, the effect of the consent decree could not have been ignored.
14. In Venkata Reddi v. Pothi Reddi 1963 Supp (2) SCR 616, AIR 1963 SC 992 this Court opined: (SCR p. 622)
“A decision is said to be final when so far as the court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicata between the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees—a preliminary decree and a final decree—the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made, the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree.”
15. The respondents could not, thus, disclaim the said consent decree by filing a suit for declaration. We may, however, hasten to add that the same would not mean that their right in relation to the other land, as for example, abadi land could be denied. We may record that in fact it was accepted at the Bar that they are entitled thereto.
16. Submission of the learned counsel for the respondents that the suit for declaration had to be filed in view of refusal on the part of the Revenue Authorities to mutate their names may not be correct as keeping in view the provisions contained in Section 47 of the Code of Civil Procedure, a subsequent suit was clearly barred. The consent decree was also binding on the Revenue Authorities. The respondents also could initiate a proceeding for preparation of final decree. They could also have filed an appropriate application for measurement of the land and delivery of possession pursuant thereto. But, by no stretch of imagination, could a second suit be held to be maintainable.
17. In Uma Shanker v. Sarabjeet (1996) 2 SCC 371 whereupon reliance has been placed by the learned counsel, a distinct and separate cause of action arose viz. despite a decree for possession of the land in favour of the appellant, they were subsequently dispossessed. The said decision, therefore, has no application to the facts of this case.
18. The High Court, thus, failed to take into consideration that there existed an error apparent on the face of record. As the second suit filed by Respondent 1 was not maintainable, the question of directing the appellant to give one bigha of land, out of 7191.94 sq. m., to Respondent 1 did not arise as the same would be inconsistent with the judgment and decree dated 22-4-1987 passed in Suit No. 113/1/1987 holding them to be the owners in possession of land measuring the area of 7191.94 sq. m. It also erred in holding that in terms of the compromise arrived at by and between the parties, Respondent 1 was entitled to 1/3rd of the total property plus one bigha.
19. For the reasons aforementioned, the appeal is allowed with liberty to the respondents to file an appropriate application, if they so desire, for measurement of the lands in question and division of lands in terms of the said consent decree. We further declare that the consent decree shall be binding on the Revenue Authorities. No costs.
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