1. The appellant, Banwari Lal, was, as the plaint stood after amendment, plaintiff 1 in the suit. Mt. Imarti, who has been impleaded as a pro forma respondent to this appeal, was plaintiff 2. The lower Appellate Court has set aside the decree of the Subordinate Judge and has remanded the suit 'for decision according to law.' The appeal is directed against this order of remand.
2. One Shyam Sundar Lal was at the time of his death, which occurred in 1926, the sole owner of certain property. Mt. Imarti is his widow. He also left him surviving his mother Mt. Katori. In the ordinary course, on Shyam Sundar Lal's death, Mt. Imarti alone should have got possession of the entire property left by him and her name alone should have been entered in the revenue records against the entire property. It appears however that the mother Mt. Katori, raised some dispute in the course of the mutation proceedings, and ultimately there was an agreement between the two ladies, as the result of which Mt. Imarti's name was entered in respect of a portion of the property and Mt. Katori's name was entered against the remaining property. Mt. Katori died in 1933. The appellant Banwari Lal is the son of Shyam Sundar Lal's sister. The defendant Ram Gopal is a distant collateral of Shyam Sunder Lal. On Mt. Katori's death Ram Gopal obtained mutation of his name in respect of the property which had been entered in Mt. Katori's name and took possession of it. Thereupon this suit was filed. The reliefs claimed, as they now stand, are that (a) it may be declared that plaintiff 1 Banwari Lal, is entitled as the reversioner of Shyam Sundar Lal, to obtain possession of the property in dispute after the death of plaintiff 2; and (b) by ejectment of defendant, Ram Gopal, possession over the property in question be given to plaintiff 2 Mt. Imarti. There was also a claim for mesne profits.
3. One of the allegations made by Ram Gopal in his defence was that Mt. Imarti was born deaf and dumb. Although it is not stated in so many words, the object of this allegation evidently was to plead that she was excluded from inheritance. The issues framed by the learned Subordinate Judge raised this point. When the case came on for trial, a witness was produced on behalf of the plaintiffs. A portion of his evidence was recorded, and then the parties came to certain terms which were embodied in the proceedings of the Court. The defendant Ram Gopal stated to the Court that
if Mt. Imarti would, in the presence of the Court, talk a little, and if she can hear anything spoken by the Court, or in the presence of the Court can hear things said by some one else and can speak a little, then the claim of plaintiff 2 be decreed.
4. The plaintiffs accepted this offer and agreed to the proposal made by the defendant. This happened on 20th March 1936. In pursuance of this agreement the learned Subordinate Judge sent for Mt. Imarti on 24th March 1936 and, in the presence of all the parties, their counsel and pairokars, put questions to her. He has recorded the entire proceedings that took place on that day in a rubkar, paper No. 54-A. The final opinion formed by the learned Subordinate Judge as the result of what took place is thus recorded by him:
It appears from the entire talk that has taken place that she is somewhat hard of hearing, but is not deaf; she cannot speak distinctly, but is not dumb.
5. As the result of these proceedings and in pursuance of the agreement entered into by the parties, the learned Subordinate Judge decided issues 1 and 2 against the defendant and held that Mt. Imarti was 'neither congenitally deaf nor dumb, and that she is entitled to succeed to her husband.' He accordingly passed a decree in favour of the plaintiffs in terms of reliefs (a) and (b) of the plaint. The defendant Ram Gopal filed an appeal against that decree and the learned District Judge has not only entertained that appeal but has allowed it and has passed the order of remand in question. The learned District Judge sent for Mt. Imarti again and put questions to her, and as the result of the impression created on his mind he came to the conclusion that Mt. Imarti was 'absolutely deaf' and that she had 'such a serious impediment in her speech that she cannot talk, leave alone take part in a sustained conversion.'
6. It is urged by learned Counsel appearing for the appellant that when the parties entered into the agreement quoted above they intended that the proceedings should take place before the trial Court and not before an Appellate Court. We have no doubt that this contention is well founded. His next argument is that the decree passed in these circumstances by the learned Subordinate Judge was in essence a consent decree based on an agreement arrived at between the parties which amounted to a compromise, and that no appeal lay against that decree. In our opinion this contention is also correct and must be accepted. There is a long series of decisions of this Court which supports the argument put forward on behalf of the appellant. The earliest case that need be 'mentioned is that in Shahzadi Begam v. Muhammad Ibrahim (1921) 8 AIR All 310. The next case is that in Himanchal Singh v. Jatwar Singh (1924) 11 AIR All 570. Then there are the decisions in Ram Sundar Misra v. Jai Karan Singh : AIR1925All271 , Sita Ram v. Peare : AIR1925All558 , Ballabh Das v. Shri Krishen : AIR1926All90 and Jaggu Mal v. Brij Lal : AIR1930All127 . The principle underlying all these decisions is the same although the facts are different. As the learned Chief Justice remarked in Ram Sundar Misra v. Jai Karan Singh : AIR1925All271 :
It is surely open to a litigant, be he plaintiff or defendant, at any stage of the proceedings to make an offer to the other side to bring litigation to a close.
7. That is exactly what Ram Gopal did in this case. In his judgment in Ballabh Das v. Shri Krishen : AIR1926All90 Sulaiman J. has thus explained the underlying principle:
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 the case if the trial were in the ordinary way.
8. The learned Judge has further made it clear that it is not only where the Court has proceeded outside its ordinary jurisdiction that an appeal is barred, and that there can be other circumstances because of which the parties to a case may have no right of appeal. We entirely agree with the rule laid down in these cases. Learned counsel appearing for the defendant-respondent has cited two judgments of a learned single Judge of this Court in Raghubir Saran Das v. Ram Das : AIR1925All348 and Mohammad Ishaq v. Balmukand Lal : AIR1929All116 . The agreement between the parties in those cases was materially different from the agreement in the case before us. In both the cases the parties requested the Munsif to inspect the locality and to decide the case on the basis of what he might see on the spot and on an examination of the documentary evidence produced by the parties. The learned Judge held that no intention on the part of the parties to bind themselves by the decision that might be given by the Munsif and to deprive themselves of the right of appeal could be gathered from the language used in the agreement in those cases. It may be pointed out that that learned Judge was a party to the decision in Jaggu Mal v. Brij Lal : AIR1930All127 . Learned counsel for the respondent has also cited the case in Sankaranarayana Pillai v. Ramaswami Pallai (1923) 10 AIR Mad 444. This case had been cited before Sulaiman J. in Ballabh Das v. Shri Krishen : AIR1926All90 . We agree with the comments made by the learned Judge on this case.
9. In our judgment no appeal lay against the decree passed by the learned Subordinate Judge so far as the decree of the Subordinate Judge awarding possession to plaintiff 2. That was the only portion of the decree which was covered by the agreement between the parties. The declaration granted to plaintiff 1 is not only against law but was also not covered by the agreement. Therefore an appeal against that portion of the decree which granted the declaration to plaintiff 1 lay to the District Judge. The learned District Judge has rightly set aside that portion of the decree of the Subordinate Judge. The result is that the order of remand passed by the learned District Judge with the direction that the suit should be tried de novo is set aside and the learned Subordinate Judge's decree awarding possession to Mt. Imarti, plaintiff 2, in terms of relief B of the plaint is restored. The appellant shall have his costs from the defendant Ram Gopal throughout.