V.S. Malimath, J.
1. This is a defendant's second appeal against the decree passed by the Civil Judge, Udapi in Appeal Suit No. 19 of 1965 confirming the decree passed by the Munsiff, Karkal in O. S. 461 of 1965.
2. The respondent-plaintiff instituted the suit on the 4th August 1962 for a declaration that he is the challenging tenant of the A schedule property, for a permanent injunction restraining the defendant from interfering with his possession and for a mandatory injunction to remove certain encroachments made by the defendant on the A schedule property. The defendant resisted the suit inter alia contending that the plaintiff is not the tenant of the suit land and that he is also not in possession of the same.
3. The learned Munsiff. after considering the evidence on record, decreed the suit. That decree was affirmed by the learned Civil Judge in appeal. Hence this second appeal by the defendant.
4. Sri B. P. Holla, the learned counsel for the appellant submitted that the learned Civil Judge committed an error of law in refusing to record a compromise arrived at between the parties. It is for the first time during the pendency of the appeal, i. e. on 9th August 1965 that an application was filed on behalf of the defendant for recording an alleged compromise dated 12th August 1962, a copy of which is produced as Exhibit A-1. As the plaintiff denied the truth and genuineness of the alleged compromise, the learned Civil Judge called for a finding in regard to the compromise from the court of first instance. The court of first instance recorded a finding in favour of the defendant and held that the compromise evidenced by Exhibit A-1 is true and genuine. It was pointed out by Sri Holla that the finding recorded in this behalf by the learned Munsiff was accepted by the learned Civil Judge also. He, however, refused to record the compromise and pass a decree in terms thereof. The learned Civil Judge went into the merits of the case and affirmed the decree passed by the Court of first Instance,
5. The submission of Sri Holla is that the Court below having come to the conclusion that the compromise evidenced by Exhibit A-1 is true and genuine, had no competence to refuse to make a decree in terms of the compromise.
6. Order XXIII. Rule 3 of the Code of Civil Procedure reads as follows:
'(3) 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, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit the Court shall order such agreement or compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit'.
Before a compromise is recorded and a decree is passed in terms thereof, the Court is to be satisfied that the suit is wholly or in part adjusted by a lawful agreement or compromise or that the defendant has satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit.
7. The question for consideration, therefore, is as to whether the subject-matter of the suit has been adjusted by the compromise Put forward by the defendant or as to whether the defendant has satisfied the plaintiff in respect of the subject-matter of the suit.
8. For deciding the question raised, I may proceed on the basis that the agreement evidenced by Exhibit A. 1 is a true and genuine one. It is necessary to note that the said agreement was executed on the 12th August 1962. i. e. eight days after the institution of the suit. The written statement contesting the suit on its merits was filed by the defendant on 11th November 1962, that is, nearly three months after the execution of the agreement Exhibit A-1. There is no whisper about the agreement A. 1 in the written statement of the defendant. What is more, both the parties led oral and documentary evidence in support of their respective contentions and invited the Court to give a decision on merits without requesting the Court to record the alleged compromise and to pass a decree in terms thereof. The Court after considering the evidence placed by the parties, made a decree in favour of the plaintiff on 18th January 1965. i. e. nearly two and half years after the execution of the alleged compromise Exhibit A. 1. That decree was challenged by the defendant by preferring an appeal on 15th April 1965. It is nearly six months after the filing of the appeal that the application was made for the first time by the defendant on 9th August 1965 requesting the appellate Court to record the com-promise evidenced by Exhibit A-1 and to Pass a decree in terms thereof. These circumstances make it clear that after the execution of the alleged compromise on 12th August 1962, neither the plaintiff nor the defendant took any steps for nearly three years to get the compromise recorded and to secure a decree in terms thereof as per the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure. On the contrary, both the parties invited the Court of first instance to render a decision on merits after placing evidence in support of their respective cases. The only inference possible from these circumstances is that the compromise dated 12th August 1962 evidenced by Ex. A-1 was not acted upon by both the parties and that the same was given a go-by. It is only on this hypothesis that the conduct of both the parties in contesting the suit can be explained.
9. If the alleged compromise evidenced by the Exhibit A-1 was not acted upon it is impossible for the Court to record a finding either that the subject-matter of the suit was adjusted wholly or in part, or that the defendant satisfied the plaintiff in respect of the subject-matter of the suit. As this prerequisite for recording the compromise under Order XXIII. Rule 3 of the Code of Civil Procedure is not satisfied, the Court could not record the compromise and pass a decree in terms thereof. The view I have taken accords with the view taken by the High Court of Madhva Pradesh in Firm Ramachandra Mathuralal v. Kalu singh Nathraj. : AIR1961MP245 with which I respectfully agree.
10. I am also of the opinion that In view of the conduct of the defendant he was also precluded by the principle of estoppel from inviting the Court to record the alleged compromise after contesting the suit on merits by giving a goby to the alleged compromise. The Court below was in my opinion, justified in refusing to record the compromise.
11. Both the Courts have concurrently recorded findings to the effect that the plaintiff is a challenging tenant in respect of the A schedule property and that being a finding of fact is not liable for interference in second appeal.
12. For the reasons stated above, fills appeal fails and the case is dismissed. No costs.