1. This is a defendant's appeal arising out of a suit for recovery of possession of certain property. The plaintiff alleged that he was the adopted son of Munna Lal and attained majority within three years of the suit. The defendant denied that the suit was within time and that the plaintiff was the adopted son of Munna Lal. There was a further plea that there had been a family settlement between Munna Lal and defendant Ballabh Das according to which the defendant was entitled to retain a larger share than half in Mouza Tond. Apparently there was some compromise, between the parties. On 11th July 1922 the defendant filed an application setting forth the terms of an alleged compromise which had been, entered into between the parties. This however was not signed by the plaintiff. The matter came up before the Judge and the plaintiff was asked about it. He agreed that all the paragraphs were correct except para. No. 4 which related to village Tond. With regard to that the plaintiff gave a slightly different version of the compromise which had been arrived at between the parties. Thus there was a dispute between the parties with regard to the terms relating to Tond; but there was no dispute with regard to any other matter in dispute. Both the parties then made the following statement:

"Whatever decision in respect of the plots in Khewat No. 12 of village Tond is given by the Court on the basis of the documentary evidence shall be accepted and agreed to by the parties. The parties shall not produce any oral evidence, but they should be given an opportunity of producing documentary evidence till 22nd of July 1922."

This agreement was duly signed by both the parties and by their vakils. After this the Court postponed the case to give the parties an opportunity to produce documentary evidence which they did. It then disposed of the case decreeing the suit in terms of the compromise of 11th July 1922 and a further decree for possession of 39.25 acres in Khewat No. 12 of Mauza Tond. The defendant submitted to this decree but the plaintiff appealed to the District Judge.

2. The first objection raised by the defendant was that the appeal was not competent in view of the agreement between the parties. The learned Judge however overruled this objection holding that the agreement merely amounted to a statement that they would not produce any oral evidence and it did not mean that they would not appeal from the decision. He then heard the case on the merits and came to the conclusion that the view taken by the Court below was wrong, and he accordingly modified the decree of the Court below. The last paragraph of his judgment indicates that there was some argument advanced before him pointing out to him that the adoption of Sri Kishen was not admitted by the defendant. He however, seems to have brushed the point aside apparently on the ground that it was Mt. Janki whose name was entered in 1908 and not Sri Kishen. This passage in the judgment is not quite clear and I shall come back to it later on.

3. The first point which I have to see is whether the view of the learned Judge as regards the competency of the appeal was correct or not. The answer to this question depends on the interpretation of the agreement between the parties. If the Court is certain that the intention of the parties was that whatever decision the Subordinate Judge arrived at should be binding upon the parties then there would be no right of further appeal. On the other hand if their intention merely was that they would not produce oral evidence but that the case should be decided on documentary evidence only, the right of appeal would remain intact. It seems to me that the learned District Judge has not attached due weight to the words shall be accepted and agreed to by the parties." A decision cannot be said to be accepted and agreed to by the parties if it is going to be appealed against in case they are not satisfied with it. The only meaning which I can attach to this expression is that it was intended that whatever decision the Court arrives at would be binding on them and would be conclusive, otherwise there would be no meaning in saying "shall be accepted and agreed to by the parties." If the agreement had merely stopped at saying that the case should be decided on documentary evidence the matter would have been quite different. That however was not the case here. This decision is further strengthened by the fact that as regards all other subject-matters in dispute the parties had compromised and the decree was in terms of the compromise. It therefore seems probable that they did not intend that there should be a fight about the other point in any higher tribunal. This case is similar on facts to the case of Shahzadi Begam v. Muhammad Ibrahim AIR 1921 All 310 decided by a Bench of this Court where the agreement provided "that the Court might find with reference to the documentary evidence produced in the case whether they were waqf properties or not; and the parties would be bound by such a finding." The Bench held that the parties could not go behind the finding of the Court and there was no right of appeal. It is contended on behalf of the respondent that the words in this reported case were stronger. But it is difficult to draw any valid distinction between the words parties would be bound by it" and the words "shall be accepted and agreed to by the parties." To my mind though the two expressions literally do not mean the same thing the intention conveyed by them is identical. This view is directly supported by the case of Sita Ram v. Peare AIR 1925 All 558.

4. The view taken in the first-mentioned case has been more or less followed in several oases by this Court. I may refer to the cases of Himanchal Singh v. Jatwar Singh AIR 1924 All 570 and Ram Sunder Misra v. Jai Keran Singh AIR 1925 All 271, which cases have been followed in Gonti v. Sohan Lal (Civil Revn. No. 214 of 1914), decided on 25-5-1925.

5. The learned advocate for the respondent contends that the right of appeal is a valuable right and cannot be taken away unless there is a clear agreement to that effect. It is argued that the test in such cases is whether the Court proceeded without jurisdiction extras cursus curiae or not. He has relied strongly on the case of Sankaranarayana Pillai v. Ramaswamy Pillai AIR 1923 Mad 444. In that case the agreement merely was that the matter should be decided according to the opinion which the Court might entertain on the aforesaid local inspection without going into any further evidence. It is true that the plaintiff had made an endorsement that he would abide by the decision, but apparently there was no corresponding endorsement by the defendant and I am not sure whether the learned Judges of the Madras High Court have treated this additional endorsement as a part of the agreement referred to by them in the judgment. Furthermore the learned Chief Justice conceded that if the agreement were clear the right of appeal might be given up. But the Bench seems to have adopted an extreme view and the learned Chief Justice has openly expressed his disagreement from two earlier Madras cases although both were Division Bench cases. The case of Nidamarthi Mukkanti v. Thammana Rammayya (1903) 26 Mad 76 is in harmony with the view taken in the cases of this Court.

6. Where, in pursuance of an agreement between the parties the Court proceeded outside its ordinary jurisdiction the proper inference would be that there was to be no appeal from the decision as would be in the case if the trial were in the ordinary way. This is fully established by the decision of the House of Lords in Burges v. Mortan (1896) AC 136. But it does not follow that this is a test of universal application and that unless the Court has proceeded outside its ordinary jurisdiction a right of appeal always exists.

7. Reliance has also been placed on behalf of the respondent on the case of Pisani v. Attorney General for Gibraltar (1874) 5 PC 516. In that case, however, all that the statement said was that the rights, if any, of the several defendants may be ascertained and declared by decree of the Court and that they may be ordered to pay each to the others and other of them their and his costs of this suit, and that the Court will give such further directions in the premises as shall be necessary. Their Lordships, at page 522 considered that the above words clearly meant that the parties were to keep themselves in curia and it was plain also that the parties and the Judge thought that an appeal was open. My attention has also been called to the decision of a Single Judge of this Court in Raghbubir Saran Das v. Ram Das AIR 1925 All 348. But in the case the agreement did not contain any words such 'as the decision would be binding' or 'shall be accepted and agreed to by the parties' The learned Judge accordingly thought that the case was distinguishable from the case of Shahzadi Begam v. Muhammad Ibrahim AIR 1921 All 310.

8. In my opinion, therefore, when the parties agreed that whatever decision the Court arrives at on the documentary evidence shall be accepted and agreed to by them, neither of them can now go back upon that agreement and challenge the decision.

9. I may point out an additional circumstance which would make the order of the District Judge defective, I have mentioned that the defendant had denied the adoption of the plantiff. An issue as to adoption was framed and there was also an issue as to limitation. If with regard to mauza Tond the parties did not agree to abide by whatever the Court decided on the documentary evidence, but merely left the decision open, the plaintiff would not have been entitled to a decree without a finding that he attained majority within three years of the suit and that he was the adopted son of Munna Lal, The plaintiff cannot treat the agreement as a compromise in order to say that the defendant waived all his pleas, and yet treat it as a mere statement that the parties would not produce any oral evidence and would be content with the production of only the documentary evidence. Thus, even if an appeal lay to the District Judge and the case was opened before him, he should not have passed a decree against the defendant, except as regards the portion compromised, without a finding that the plaintiff attained majority within three years of the suit, and that he was the adopted son of Munna Lal. The last paragraph in the judgment indicates that some objection was raised on behalf of the defendant that the adoption of Sri Kishen was not admitted; but the learned Judge has brushed that aside apparently on the ground that it was immaterial because it was Mt. Janki's name which was entered in the revenue papers and not that of Sri Kishen. But even if it was Mt. Janki who was entered in the revenue paper and who entered into the settlement with the defendant, nevertheless the plaintiff cannot get his share unless he successfully proves that he is her adopted son. There is no express statement by the defendant that he was prepared to waive his pleas. This circumstance further strengthens the view that the intention of the parties was that whatever the first Court decided would be final and conclusive and that there should be no further appeal to any higher tribunal.

10. I accordingly allow this appeal and setting aside the decree of the lower appellate Court restore that of the Court of first instance with costs in the lower appellate Court and in this Court including in this Court fees on the higher scale.