Delhi District Court
Mohd Adul Fazal Farooqui vs Jamia Millia Islamia on 4 June, 2025
IN THE COURT OF MONA TARDI KERKETTA,
DISTRICT JUDGE-06, SOUTH EAST DISTRICT,
SAKET COURTS, DELHI
RCA DJ No.05/18
CNR No.DLSE01-000213-2018
Mohd. Abul Fazal Farooqui,
S/o Sh. Mohd. Abul Barkat
R/o House No.332/5,
Batla House, Okhla,
New Delhi-110025. .....Appellant
Versus
Jamia Millia Islamia
Through its Registrar
Jamia Nagar, Okhla,
New Delhi-110025. .....Respondent
Date of filing of the present appeal : 11.12.2013
Date of completion of Final Arguments : 29.05.2024
Date of Judgment-in-Appeal : 04.06.2025
Final Decision : Appeal Dismissed.
Appearances :
For Appellant : Sh. A.K. Sen and Sh. Deepak Bidhuri,
Advs.
For Respondent : Sh. Pritish Sabharwal, Standing Counsel.
JUDGMENT-in-APPEAL
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BRIEF FACTS OF THE MEMORANDUM OF APPEAL :
1. The present appeal has been preferred by the
appellant/defendant no.1 Mohd. Abul Fazal Farooqui, assailing
the order and decree dated 11.11.2013 passed by the Ld. Civil
Judge-13 (Central), Delhi in Civil Suit No. 331/13/86, whereby
the judgment and decree dated 21.04.1984 passed in Suit No.
74/1983 titled Jamia Millia Islamia vs. Abu Fazal Farooqui was
declared null and void. Consequently, all rights and benefits
accrued to the defendant by virtue of the said decree were
ordered to stand cancelled, and the revenue records were directed
to be restored to reflect the ownership status as it existed prior to
the said decree.
2. For the sake of convenience, the parties shall be
referred to by their status before the Ld. Trial Court. The
appellant herein shall be referred to as the defendant no.1, and
the respondent as the plaintiff.
3. Briefly stated, the plaintiff–an educational and
research institution–instituted Suit No. 331/13/86 alleging that
the judgment and decree dated 21.04.1984 in Suit No. 74/1983
were obtained by fraud, collusion, and interpolation of court
records. It was contended that in the earlier suit, the plaintiff had
filed for a permanent injunction restraining the defendant from
trespassing upon land forming part of Khasra Nos. 227, 330 and
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232 (later shown interpolated as Khasra Nos. 338/227, 235 and
232), situated at Village Abadi of Batla House, Tehsil Mehrauli,
Delhi.
4. In the said suit, four issues were framed on
01.11.1983, and the matter was listed for plaintiff’s evidence. On
16.04.1984, parties reported a compromise. On the next date, i.e.,
17.04.1984, the defendant moved an application under Order VI
Rule 17 CPC seeking amendment of the written statement, which
was allowed without opposition. In the amended pleadings, the
defendant raised a plea of ownership by adverse possession and
filed a counterclaim seeking a declaration to that effect.
5. It is alleged that on 17.04.1984, the defendant no.2-
Shri C.B. Thanai, Legal Advisor of the plaintiff (since deceased),
made a statement withdrawing the suit and further, on
18.04.1984, he expressed no objection to the counterclaim being
decreed. The Court, by order dated 21.04.1984, dismissed the
plaintiff’s suit as withdrawn and decreed the defendant’s
counterclaim, declaring him owner of the suit property by
adverse possession.
6. The present suit was filed on 17.05.1986 against
both defendants–Mohd. Abul Fazal Farooqui and Shri C.B.
Thanai–contending that the judgment and decree dated
21.04.1984 were vitiated by fraud and collusion. It was
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specifically alleged that the khasra numbers were interpolated
without any formal application for amendment or court order.
These interpolations were not supported by any signature of the
Presiding Officer, the parties, or their counsel. The plaintiff
alleged that the said acts amounted to forgery and
misrepresentation.
7. It was further asserted that Shri C.B. Thanai acted
without proper authority and had no instructions from the
plaintiff to withdraw the suit or to concede the counterclaim. The
Vakalatnama on record was stated to be in favour of one Ms.
Kumkum, Advocate, and not Shri C.B. Thanai, thereby rendering
his acts unauthorized. The plaintiff also submitted that the decree
was unregistrable under the provisions of the Registration Act,
and therefore void and inoperative.
8. The plaintiff further contended that the suit land was
subject to acquisition proceedings under Sections 4 and 6 of the
Land Acquisition Act, with Award dated 24.02.1984, prior to the
judgment and decree dated 21.04.1984. Hence, the civil court
lacked jurisdiction to declare ownership by adverse possession
thereafter. Additionally, it was contended that the counterclaim
did not satisfy the legal requirements for a plea of adverse
possession and exceeded the pecuniary jurisdiction of the Court.
9. The plaintiff became aware of the judgment and
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decree dated 21.04.1984 only upon its publication in the
newspaper Current dated 01.02.1986. Consequently, the present
suit was filed seeking, inter alia, the following reliefs:
9.1) Declaration that the judgment and decree dated
21.04.1984 are void ab initio, illegal, without force of law, and
obtained by fraud and collusion ;
9.2) Restoration of the status quo ante in respect of
Khasra Nos. 227, 330 and 232;
9.3) Declaration of plaintiff’s ownership over Khasra
Nos. 232, 235 and 338/227;
9.4) Permanent injunction restraining the defendants
from receiving any compensation pertaining to the acquired land;
9.5) Costs of the suit and other appropriate reliefs.
10. The Trial Court, after a detailed examination of the
record, evidence led by parties, and legal submissions, concluded
that the judgment and decree dated 21.04.1984 was indeed
obtained through collusion and fraudulent conduct on the part of
the defendants. The Court noted material irregularities including
unauthorized statements, interpolation of khasra numbers without
court approval, and lack of compliance with the mandatory
registration requirements under the Registration Act.
Consequently, the decree dated 21.04.1984 was declared null and
void.
11. Aggrieved by the said judgment, the defendant has
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preferred the present appeal.
12. THE APPELLANT/DEFENDANT NO. 1
CONTESTED THE SUIT ON SEVERAL GROUNDS, WHICH
ARE SUMMARISED AS FOLLOWS :
12.1) That the suit was not maintainable on account of
misjoinder of necessary parties, as Defendant No. 2 (since
deceased) was neither a necessary nor a proper party to the
proceedings;
12.2) That Shri M.N. Menai, the then Registrar, lacked the
right, title, interest or locus standi to institute the suit on behalf of
the plaintiff institution;
12.3) That the suit was barred by limitation;
12.4) That Defendant No. 1 was already in possession of
the suit land and had perfected title by adverse, hostile and
uninterrupted possession for over 20 years, which was further
confirmed and declared by a decree dated 21.04.1984 passed in
Suit No. 74/1983. It was contended that the said decree did not
effectuate any sale or transfer so as to attract the bar under the
Delhi Lands (Restrictions on Transfer) Act, 1972;
12.5) That the validity of the judgement and decree dated
21.04.1984 could not be assailed by filing an independent suit for
declaration, and the proper remedy would have been to prefer an
appeal against the said decree. Since no such appeal had been
filed, the decree had attained finality and could not be challenged
in collateral proceedings.
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13. The plaintiff filed a replication to the written
statement of Defendant No. 1, wherein it denied the averments
made by the defendant and reaffirmed the facts and submissions
as stated in the plaint.
14. On the basis of the pleadings, the following issues
were framed by the Ld. Trial Court vide orders dated 05.03.1987
and 18.09.2013:
(i) Whether the decree passed in Suit No. 74/1983 on
18.04.1984 was the result of fraud and collusion
between the defendants and hence a nullity?
(ii) Whether the description or identity of the property in
Suit No.74/1983 was altered by tampering with the
judicial record?
(iii) Whether Shri C.B. Thanai (Defendant No. 2) was
competent to enter into a compromise on behalf of
the plaintiff in Suit No. 74/1983?
(iv) Whether the decree in Suit No. 74/1983 required
registration, and what would be the legal
consequences thereof?
(v) Whether the compromise recorded in Suit No.
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74/1983 was in contravention of Order XXIII Rule 3
CPC?
(vi) Whether the suit against Defendant No. 2 was not
maintainable? (OPD2)
(vii) Whether the suit was bad for misjoinder of parties?
(OPD1)
(viii) Whether Shri M.N. Menai was competent to institute
the suit?
(ix) Whether the suit was barred by limitation?
(x) Whether the power of attorney executed by the
plaintiff in Suit No. 74/1983 had no application to
the counterclaim filed by Defendant No. 1 in that
suit?
(xi) Whether the Ld. Sub. Judge, who adjudicated the
counterclaim in Suit No. 74/1983, lacked pecuniary
jurisdiction to pass the decree?
(xii) Whether the jurisdiction of the Civil Court was
barred under Sections 30 and/or 31 of the Land
Acquisition Act?
(xiii) Whether the present Court lacked pecuniary
jurisdiction to entertain and try the suit?
(xiv) Whether the decree dated 18.04.1984 in Suit No.
74/1983 was a nullity by virtue of the provisions of
the Delhi Lands (Restrictions on Transfer) Act,
1972?
(xv) Whether the suit was barred under Order XXIII Rule
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3A CPC and/or Section 34 of the Specific Relief
Act, 1963? (OPD)
(xvi) Relief.
15. EVIDENCE ON RECORD:
The plaintiff examined the following witnesses in
support of its case:
15.1) PW1: Shri Rizwan Latif Khan, Assistant Registrar
(Legal Cell),
15.2) PW2: Shri S.U. Khan, Assistant Registrar (Legal
Cell),
15.3) PW3: Shri Naveen, Record Keeper, Department of
Delhi Archives, Office of Sub-Registrar-I, Kashmiri
Gate, Delhi.
16. On the other hand, the defendant led the following
evidence:
16.1) DW1: Mohd. Abu Fazal Farooqui (Defendant No.1),
16.2) DW2: Shri Nawab Singh, Halka Patwari, SDM
Office, Defence Colony, New Delhi,
16.3) DW3: Shri Chatar Pal Singh, Office Kanoongo,
Record Room, Tehsil Mehrauli,
16.4) DW4: Shri Ramesh Kumar, Patwari, Sadar
Kanoongo, Revenue Office, Tis Hazari, Delhi,
16.5) DW5: Shri A.A. Naiyar, Translator.
RCA DJ 05/18 Page No.9 of 29
17. Upon completion of trial, final arguments were
addressed by both parties. After hearing submissions and
examining the record, the Ld. Trial Court passed a judgment and
decree dated 11.11.2013 decreeing the suit in favour of the
plaintiff and against the defendant. The operative portion of the
decree is summarised as under :
17.1) The judgment and decree dated 21.04.1984 passed in
Suit No. 74/1983 (Jamia Millia Islamia vs. Abu Fazal Farooqui )
was declared null and void, having been obtained by fraud,
forgery of court records, and collusion between Defendant No. 1
and Shri C.B. Thanai, Advocate, thereby misleading the Court;
17.2) The legal status and rights of the parties in relation
to the suit property, being Khasra Nos. 338/227, 235, and 232
situated in the Abadi of Batla House, Tehsil Mehrauli, Delhi,
shall stand as if the judgment and decree dated 21.04.1984 had
never been passed;
17.3) All rights, claims or benefits derived by Defendant
No. 1 by virtue of the said decree shall stand cancelled.
Consequently, the revenue records shall be restored to their
original status, as they existed prior to 21.04.1984, with the
deletion of Defendant No. 1’s name from the ownership column
and reinstatement of the name(s) that existed therein previously;
17.4) The plaintiff was held entitled to pursue appropriate
remedies in respect of the aforementioned Khasra numbers, and
liberty was granted accordingly.
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18. GROUNDS OF APPEAL: The appellant assails the
impugned judgment and decree dated 11.11.2013 passed by the
Ld. Trial Court on the following, amongst other, grounds :
18.1) That the findings of the Ld. Trial Court are based on
conjectures and surmises, without due appreciation of pleadings
and evidence. It has been incorrectly recorded that an application
under Order VI Rule 17 CPC was moved on 17.04.1984 after the
statement of the plaintiff’s counsel on 16.04.1984, thereby
imputing fraud and collusion without legal or factual basis.
18.2) That the Ld. Trial Court failed to appreciate that the
counterclaim asserting adverse possession was lawfully
incorporated by way of amendment to the written statement in
Suit No. 74/1983 and the same was decided on merits.
18.3) That the suit filed by the plaintiff was barred under
Order XXIII Rule 3A CPC, which prohibits institution of a
separate suit to set aside a decree on the ground that the
compromise on which it is based was not lawful.
18.4) That the Ld. Trial Court erroneously entertained and
adjudicated a fresh suit challenging the compromise decree,
which was impermissible in law and beyond the jurisdiction of
the Civil Court.
18.5) That the suit filed by the plaintiff for mere
declaration, without seeking possession of the suit property, was
barred under Section 34 of the Specific Relief Act, 1963, as the
plaintiff was admittedly not in possession of the subject land.
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18.6) That the present suit is barred by res judicata under
Section 11 CPC, inasmuch as the issues raised herein had already
been adjudicated in the earlier Suit No. 74/1983 between the
same parties or parties claiming through them.
18.7) That instead of filing a suit for declaration, the
plaintiff had a remedy of preferring an appeal against the
judgement and decree dated 21.04.1984, which attained finality,
and hence the present suit is not maintainable.
18.8) That the Trial Court wrongly inferred interpolation
in judicial records without any cogent evidence or identification
of the person allegedly responsible, and unjustly attributed such
alleged interpolation to the appellant.
18.9) That the alleged misdescription of Khasra numbers
was made by the plaintiff, and not by the defendant no.1 , who
had correctly mentioned the relevant Khasra numbers. Hence,
any alleged tampering, if at all, was to the benefit of the plaintiff.
18.10) That no complaint of professional misconduct was
ever filed by the plaintiff against defendant no.2 before the Bar
Council, despite allegations of fraud and collusion. This inaction
by the plaintiff reinforces that the statements made in Court were
with its due consent and instructions.
18.11) That the Ld. Trial Court erroneously concluded that
defendant no.2 lacked authority to enter into a compromise or
make statements on behalf of the plaintiff, despite the existence
of a valid vakalatnama on record authorizing the said counsel.
18.12) That the statements and actions of defendant no.2RCA DJ 05/18 Page No.12 of 29
were within the scope of his authorization as legal counsel and
legal adviser of the plaintiff, and were made in furtherance of
instructions issued by the plaintiff.
18.13) That the Ld. Trial Court acted in excess of
jurisdiction by reappreciating the judgment and decree dated
21.04.1984, in the manner of an appellate Court, without lawful
authority to do so.
18.14) That there was no credible evidence on record
establishing collusion or forgery in procuring the decree dated
21.04.1984. The observations of the Ld. Trial Court in this regard
are speculative and unsubstantiated.
18.15) That the inference drawn by the Trial Court
regarding collusion and fraudulent conduct is based on mere
suspicion and is not supported by any documentary or oral
evidence on record.
18.16) That the finding of the Ld. Trial Court directing
reversion of the ownership of land bearing Khasra No. 338/227
to the plaintiff is contrary to the revenue records which clearly
establish that the plaintiff had only a partial (¼) share in the said
land.
18.17) That the Trial Court erred in decreeing the suit in
favour of the plaintiff despite the admissions of plaintiff’s own
witnesses (PW1 and PW2), who unequivocally stated that the
counsel’s statements in Suit No. 74/1983 were made under
authorization and instructions of the plaintiff.
18.18) That the findings rendered by the Ld. Trial Court areRCA DJ 05/18 Page No.13 of 29
not supported by cogent evidence and the issues have been
wrongly decided against the defendant no.1
18.19) The impugned judgment and decree dated
11.11.2023 passed by the Ld. Trial Court may be set aside and
the suit of the plaintiff may be dismissed with costs throughout;
Any other order or relief deemed just and proper in the interest of
justice may also be granted.
19. FINAL SUBMISSIONS ON BEHALF OF THE
APPELLANT/DEFENDANT NO.1:
19.1) The suit filed by the respondent/plaintiff seeking to
set aside the compromise decree passed in Civil Suit No. 74/1983
is not maintainable under law. The decree in question was based
on compromise between the parties and not on adjudication after
trial. In terms of Order XXIII Rule 3-A CPC, no separate suit
shall lie to set aside a decree on the ground that the compromise
on which it is based was not lawful. Thus, the present suit is
barred by a statutory prohibition.
19.2) The proper legal recourse for a party aggrieved by a
compromise decree lies either in :
(i) Filing an application under the Proviso to Order
XXIII Rule 3 CPC before the same Court that recorded the
compromise; or
(ii) Filing an appeal under Section 96(1) CPC.
Reliance is placed on the judgment of the Hon’ble Supreme
Court in Gopal Lal v. Babu Lal, AIR 2004 Raj 264, which
RCA DJ 05/18 Page No.14 of 29
categorically held that a civil suit to set aside a compromise
decree is not legally tenable. This position was reaffirmed in
Banwari Lal v. Chando Devi, AIR 1993 SC 1139.
19.3) The Trial Court, despite framing Issue No. 15 on the
bar under Order 23 Rule 3-A CPC and Section 34 of the Specific
Relief Act, erred in law by not deciding it as a preliminary issue.
Instead, it proceeded with the full trial, thereby committing a
procedural illegality. Reference is made to Arun Aggarwal v.
Nagarika Exports Pvt. Ltd., (2002) 10 SCC 101, which mandates
that where jurisdiction is challenged, the Court must first
adjudicate on such issue.
19.4) The decree in Suit No. 74/1983 was passed pursuant
to statements made by counsel for the plaintiff and the defendant,
recorded by the Court. It was a decree based on a compromise
between the parties, and not one rendered on the basis of
evidence. Hence, the decree falls squarely within the ambit of
Order XXIII Rule 3 CPC, attracting the bar of Rule 3-A.
19.5) In Pushpa Devi Bhagat (D) through LRs v. Rajinder
Singh & Ors. (SLP 13894/2004), the Hon’ble Supreme Court
held that consent decrees are binding, operate as estoppel, and
cannot be set aside through independent suits. The Court
emphasized that such decrees may only be questioned in the
same proceedings or through appeal under Section 96(1) CPC,
but not through a fresh suit. Section 96(3) CPC expressly bars
appeals from consent decrees.
19.6) It is submitted that Mr. C.B. Thanai, Advocate, who
RCA DJ 05/18 Page No.15 of 29
represented the plaintiff in Suit No. 74/1983, acted under a valid
vakalatnama and was fully authorized to appear and make
statements on behalf of the plaintiff university. As held in Byram
Pestonji Gariwala v. UBI & Ors., (1992) 1 SCC 31, an advocate
holding due authority may validly enter into a compromise on
behalf of a client, and such statements recorded in Court are
binding on the party.
19.7) The representative witnesses of the plaintiff, namely
PW1 and PW2, admitted in their depositions that the statements
made by the counsel in Suit No. 74/1983 were given under
instructions from the plaintiff and within the scope of authority.
Such admissions further validate the legality of the compromise
and negate the allegations of fraud or unauthorized action.
19.8) The plaintiff in the fresh suit sought a declaration
without claiming possession of the suit land. Such a suit is barred
under Section 34 of the Specific Relief Act, which prohibits
declaratory reliefs where the plaintiff is not in possession and
does not seek consequential relief. The suit was, therefore, also
defective for want of maintainability on this ground.
19.9) The suit was a colourable device to circumvent the
binding nature of the compromise decree and to re-agitate issues
already concluded. The statutory bar under Order 23 Rule 3-A
CPC was sought to be defeated by indirect means, which cannot
be permitted in law.
20. FINAL SUBMISSIONS ON BEHALF OF THE
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RESPONDENT /PLAINTIFF:
20.1) The present appeal arises from the judgment and
decree dated 11.11.2013 passed by the Ld. Civil Judge, Shri
Vishal Singh, Tis Hazari Courts, Delhi, whereby the suit of the
Respondent, Jamia Millia Islamia (a Central University
established under the Jamia Millia Islamia Act, 1988), was
rightly decreed. The findings of the learned Trial Court are based
on a thorough appreciation of evidence and settled legal
principles and hence merit no interference.
20.2) The Appellant is the alleged owner of parcels of land
adjoining the University’s property in Khasra Nos. 338/227,
337/2207, 232, and 235 in Village Okhla, New Delhi. He had
developed an unauthorised colony and repeatedly proposed an
exchange of land in Khasra No. 246 with that of the University–
proposals that were expressly declined by the Respondent,
including the one dated 28.09.1981 (Ex. PW-2/1). Following this
refusal, the Appellant threatened to encroach upon University
land, prompting the Respondent to file Suit No. 74/1983 seeking
injunctive relief.
20.3) Defendant No.2, an advocate practising at Tis Hazari
Courts, was appointed as the Legal Advisor to the University
vide appointment dated 22.01.1982, effective from 13.10.1981.
In that capacity, he facilitated the execution of a vakalatnama in
favour of Advocate Miss Kum Kum (bearing the print “C.B.
Thanai & Co.”). In Suit No. 74/1983, the Appellant filed a
written statement on 26.05.1983. However, before the matter
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proceeded to evidence, he filed an application under Order VI
Rule 17 CPC to amend the written statement and introduce a
counterclaim for ownership by adverse possession–without ever
serving notice of such amendment or counterclaim upon the
Respondent University.
20.4) The court record reveals that on 16.04.1984,
17.04.1984, and 18.04.1984, Defendant No.2, purporting to
represent the Respondent without any authorization, made
unilateral statements before the Court consenting to the
amendment, withdrawal of the suit, and decree of the
counterclaim. On 18.04.1984, he further declared that no reply
would be filed to the counterclaim and that there was no
objection to the same being decreed. These actions, done without
the knowledge or instructions of the Respondent University, were
collusive and illegal, resulting in the dismissal of the University’s
suit and decree of the Appellant’s counterclaim with respect to
Khasra Nos. 338/227, 232, and 235 on the basis of adverse
possession–causing wrongful loss to the Respondent and unjust
enrichment to the Appellant.
20.5) Defendant No.2 continued to mislead the University.
In response to the University’s letter dated 06.08.1984, he falsely
claimed in his reply dated 14.08.1984 that the land had already
been acquired through Award No. 94/83-84 dated 24.02.1984
and that the suit had been withdrawn on instructions. He denied
possession of any case files and suppressed the fact that a
counterclaim had been decreed. These representations were not
RCA DJ 05/18 Page No.18 of 29
only misleading but factually incorrect, as no possession had
been taken under Section 16 of the Land Acquisition Act, 1894,
and the University remained the lawful owner of the property.
20.6) The omission to disclose the amendment application,
counterclaim, alleged compromise, and Defendant No.2’s
unauthorised statements reveals a calculated attempt to commit
fraud upon the Court and the Respondent. The alleged decree
dated 21.04.1984 was obtained through fraudulent collusion
between Defendant No.2 and the Appellant, with an ulterior
motive to wrongfully claim compensation under acquisition
proceedings.
20.7) It is pertinent to note that the subject lands had
already been notified under Sections 4 and 6 of the Land
Acquisition Act, 1894 via notifications dated 14.07.1980 and
29.04.1981 respectively, and the award had been issued on
24.02.1984. Consequently, in light of Section 4 of the Delhi
Lands (Restrictions on Transfer) Act, 1972, any decree
purporting to effectuate transfer of title in such land is void ab
initio, null and inoperative in law.
20.8) It is a settled principle that a counterclaim is an
independent suit and requires proper authorization and
representation. The vakalatnama executed for the original suit did
not authorize representation in respect of the counterclaim.
Furthermore, under Order XXIII Rule 3 CPC, a compromise
decree must be predicated upon a written instrument signed by
both parties. No such written compromise exists in the present
RCA DJ 05/18 Page No.19 of 29
case, rendering the impugned decree legally unsustainable.
20.9) The University only came to know of the said
fraudulent decree upon publication of the judgment in the
newspaper “CURRENT” dated 01.02.1986. The collusion,
suppression of material facts, and complete absence of due
process render the decree of 21.04.1984 void and liable to be set
aside. The learned Trial Court has rightly held the decree to be
vitiated by fraud, misrepresentation, lack of authority, and
violation of statutory provisions.
20.10) The Appellant’s fraudulent conduct has been aptly
exposed in the impugned judgment. It is well established that
fraud vitiates all judicial acts, whether before the lowest or the
highest court [S.P. Chengalvaraya Naidu v. Jagannath, AIR 1994
SC 853]. Judgments or decrees obtained by fraud are nullities
and may be challenged even in collateral proceedings. Fraud may
be inferred from circumstantial evidence alone [Karim v. Mrs.
Lucy Kochuvareed, 1964 KLT 198].
20.11) The learned Trial Court’s decree is supported by
consistent precedents including Ram Kishan v. Isardari Devi,
MANU/PH/0544/2002; Ghulam Rasool Reshi v. Ghulam Hassan
Reshi, AIR 2003 J&K 6; and Barnett Singh v. Dalip Kaur,
MANU/PH/0721/1995. These authorities recognize that suits
challenging compromise decrees on grounds of fraud are
maintainable.
20.12) Furthermore, the alleged compromise that led to the
decree was never reduced into writing or signed by the
RCA DJ 05/18 Page No.20 of 29
Respondent, making it void under law. In this regard, reliance is
placed on Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC
400; and Kamla Devi v. Prabhat Chand, AIR 1997 Delhi 317.
The compromise, if any, was not even registered–despite
affecting rights in immovable property–which is a statutory
requirement under the Registration Act. Thus, the unregistered
instrument is legally ineffective [Bhoop Singh v. Ram Singh,
AIR 1996 SC 196; K. Raghunandan v. Ali Hussain Jabir, AIR
2008 SC 2337].
20.13) The Legal Advisor, Mr. C.B. Thanai, had no
authority to withdraw the suit or consent to any decree, as held in
Manmohan Sethi Dhalimal v. Gurbax Singh Arora, 94 (2001)
DLT 820. Any such purported withdrawal is, therefore, void and
non est in law.
20.14) Moreover, at the time of the decree, the suit land
was already under a Section 4 Notification of the Land
Acquisition Act. In view of the statutory embargo, no legal
alienation or compromise regarding the land could have been
effected. This legal position is settled in Jaswant Kaur v. Lt.
Governor, 1991 I AD (Delhi) 894; Meera Sahni v. Lt. Governor
of Delhi, (2008) 9 SCC 177; and Preetam Kaur Behl v. ADM
(LA), 2006 (91) DRJ 1.
20.15) The appeal, being devoid of merit, based on
fraudulent assertions, and constituting gross abuse of the judicial
process, be dismissed with costs.
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21. THE POINTS FOR DETERMINATION IN
APPEAL :
Point No.1 : Whether the suit is barred by Order XXIII Rule 3-A
of the Code of Civil Procedure?
Point No.2: Whether the decree qualifies as a valid compromise
under Order XXIII Rule 3 CPC and is protected
under Section 96(3) CPC?
Point No.3: Whether Defendant No.2 was authorized to
represent the Plaintiff in consenting to withdrawal
and compromise?
Point No.4: Whether the absence of a written compromise
vitiates the decree?
Point No.5: Whether fraud, collusion, and misrepresentation
have been established?
Point No.6: Whether the suit is barred under Section 34 of the
Specific Relief Act, 1963?
Point No.7: Whether the Trial Court committed any procedural
illegality by not deciding maintainability as a
preliminary issue?
Point No.8: Whether the Trial Court rightly decreed the suit of
the Plaintiff ?
22. Now the court shall deal with the aforesaid points
for determination.
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23. For better understanding and appreciation of the
issues involved in the present appeal, a reference is had to the
order passed by the Court of the then Sub-Judge, Delhi dated
21.04.1984 which is reproduced as under:-
Order dated 21.04.1984 :
“In view of the statement of Sh. C.B. Thanai, Legal
Advisor of the plaintiff, the suit of the plaintiff is hereby
dismissed as withdrawn.
2. The defendant in his written statement has raised
a counter-claim thereby seeking declaration of his
ownership over the property in dispute. I have gone
through the said claim. Shri Thanai has also made a
statement on 18/04/1984 that the plaintiff does not intend
to file any written statement to the said counter-claim. He
has also stated that the plaintiff has no objection if the
counter-claim is decreed.
3. In view of the aforesaid facts, the counter-claim of
the defendant is hereby decreed and it is hereby declared
that the defendant has become owner of the property
comprised in Khasra No. 338/227, 235 and 232 situated in
village Okhla by way of adverse possession. Decree sheet
be prepared accordingly and the file be consigned to the
record room. The parties shall bear their own costs.
Announced in open court on 21/04/1984″.
The decree drawn up by the court in pursuance of the order
dated 21/04/1984 reads thus : “the counter claim is hereby
decreed and it is hereby declared that the defendant has
become owner of the property comprised in Khasra No.
338/227, 235 and 232, situated in village Okhla by way of
adverse possession. The parties shall bear their own
costs.”
24. Now the court shall deal with the aforesaid points
for determination.
25. Point No.1 : Whether the suit is barred by Order XXIII
Rule 3-A of the Code of Civil Procedure?
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Finding: The statutory bar contained in Order XXIII Rule
3-A CPC applies solely to valid and lawful compromise decrees.
In the instant case, the Plaintiff has specifically pleaded and led
cogent evidence to establish that the compromise decree dated
21.04.1984 was obtained through fraud, collusion, and without
proper authority. The impugned decree does not qualify as a
lawful compromise, but was rather the result of a collusive
arrangement between Defendant No.1 and one Mr. C.B. Thanai,
acting in the absence of due authorization. Reliance is placed
upon the judgment of the Hon’ble Supreme Court in S.P.
Chengalvaraya Naidu v. Jagannath, AIR 1994 SC 853, wherein it
was held that fraud vitiates all judicial acts. Therefore, the
statutory bar under Order XXIII Rule 3-A CPC is not attracted in
the present case.
26. Point No. 2: Whether the decree qualifies as a valid
compromise under Order XXIII Rule 3
CPC and is protected under Section
96(3) CPC?
Finding: As per the mandate of Order XXIII Rule 3 CPC, a
compromise decree must be based on a lawful agreement in
writing, signed by the parties, and recorded by the Court. A
perusal of the Trial Court record reveals that no such written
compromise, signed by the parties, was ever filed. Furthermore,
RCA DJ 05/18 Page No.24 of 29
no compromise deed was placed before the Court, and the Court
did not record any lawful compromise between the parties. The
plaintiff’s suit was dismissed as withdrawn, without the Court
recording any satisfaction regarding the terms of a compromise.
Therefore, the decree cannot be construed as a lawful
compromise under Order XXIII Rule 3 CPC, and consequently,
the bar under Section 96(3) CPC also does not apply.
27. Point No. 3: Whether Defendant No.2 was authorized to
represent the Plaintiff in consenting to
withdrawal and compromise?
Finding:The vakalatnama on record (Ex. PW2/X3) in Suit
No. 74/1983 was executed by the plaintiff in favour of Ms.
Kumkum, Advocate, and not in favour of Mr. C.B. Thanai.
Although the vakalatnama bore the stamp of “C.B. Thanai &
Co.,” it was not signed by Mr. Thanai himself. Thus, he was not
authorized to act as counsel for the plaintiff. The evidence clearly
shows that the suit was withdrawn by Mr. C.B. Thanai in his
capacity as legal advisor and not as a duly authorized advocate or
attorney. The authority to withdraw a suit lies only with the
plaintiff’s counsel or an authorized attorney acting upon
instructions of the plaintiff. Since no such authorization was
granted to Mr. C.B. Thanai to either withdraw the suit or to
consent to the counterclaim, his conduct exceeded his authority
and cannot bind the plaintiff. The vakalatnama executed in
favour of Ms. Kumkum was limited in scope and did not
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authorize any compromise or consent to the counterclaim.
28. Point No. 4: Whether the absence of a written compromise
vitiates the decree?
Finding: The requirement of a written compromise under
Order XXIII Rule 3 CPC is mandatory. In the present case, no
such document is found on the record of Suit No. 74/1983. In the
absence of a written and signed agreement by the parties, the
decree passed on 21.04.1984 cannot be treated as a valid
compromise and is thus vitiated.
29. Point No.5: Whether fraud, collusion, and
misrepresentation have been established?
Finding : It stands established that Defendant No.2, a
practicing advocate, was appointed as the plaintiff’s legal advisor
vide letter dated 22.01.1982, effective from 13.10.1981. He
facilitated the execution of a vakalatnama in favour of Advocate
Ms. Kumkum. The plaintiff has alleged, and the record
substantiates, that the counterclaim was introduced by Defendant
No.1 at the stage of evidence without formal notice or service.
Mr. C.B. Thanai, purporting to represent the plaintiff without
authority, made unilateral statements in Court consenting to the
amendment, withdrawal of the suit, and decree of the
counterclaim. Further, he stated on record that no reply would be
filed and there was no objection to the counterclaim being
decreed. These statements are recorded in the ordersheets dated
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16.04.1984, 17.04.1984, and 18.04.1984. The plaintiff has
credibly asserted that it had no knowledge of these acts, and there
is no evidence of instructions having been given to that effect.
Such conduct is clearly collusive and was designed to secure an
order decreeing the counterclaim based on adverse possession
over Khasra Nos. 338/227, 232, and 235, thereby causing
wrongful loss to the plaintiff and unjust gain to Defendant No.1.
It is conclusively established that the impugned decree was
obtained by misleading the Court and concealing material facts,
and is thus vitiated by fraud.
30. Point No.7: Whether the suit is barred under Section 34 of
the Specific Relief Act, 1963?
Findings: The bar under Section 34 of the Specific Relief
Act is attracted only in cases where the plaintiff seeks a bare
declaration without seeking consequential relief. In the present
case, the plaintiff seeks the setting aside of a fraudulent decree
concerning immovable property and restoration of possession,
which constitutes substantial and consequential relief. Therefore,
the bar under Section 34 does not apply.
31. Point No. 9: Whether the Trial Court committed any
procedural illegality by not deciding
maintainability as a preliminary issue?
Finding: Though ideally the issue of maintainability under
Order XXIII Rule 3-A CPC should have been addressed at the
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preliminary stage, the matter proceeded to a full-fledged trial
wherein both parties were afforded complete opportunity to
present evidence. No prejudice has been caused to either party by
the Trial Court’s approach. As such, no procedural illegality or
miscarriage of justice has occurred.
32. Point No. 10: Whether the Trial Court rightly decreed the
suit of the Plaintiff ?
Finding: Upon comprehensive appreciation of the
pleadings, documentary and oral evidence, and applicable law,
the Trial Court has rightly concluded that the decree dated
21.04.1984 was obtained by fraud, was passed without authority
or lawful compromise, and is legally unsustainable. The findings
of the Trial Court are well-reasoned and require no interference.
33. Conclusion:
In light of the above discussion and findings on all
material issues, this Court finds no merit in the present appeal.
The impugned judgment and decree dated 11.11.2013 passed by
the Learned Trial Court is sound and does not call for
interference. Accordingly, the appeal stands dismissed, leaving
the parties to bear their own costs.
34. Record of the Ld. Trial Court be returned with the
copy of this judgment.
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35. Appeal file be consigned to record room, after
completion of necessary formalities.
(Announced in the open Court
on 4th Day of June, 2025)
(Mona Tardi Karketta)
Additional Sessions Judge-01(South)
Special Court (POCSO)
Saket Courts/New Delhi
04.06.2025
Previously Posted as District Judge-06,
South East District, Saket Courts,
New Delhi
04.06.2025
Note: Judgment passed pursuant to the Order
No. 15/D-3/Gaz.IA/DHC/2025 dated 30.05.2025 of
the Hon’ble High Court of Delhi.
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