MUNIR AHMED CHAUDHARY, J. --- This appeal has been filed against the judgment and decree passed by the learned Additional District Judge Mirpur dated 02.02.2006, through which an appeal filed by the respondents, Umar Mehmood & others, was accepted and judgment and decree passed by the learned Senior Civil Judge, Mirpur dated 08.03.2005 was set aside.
2. Brief facts giving rise to the instant appeal are that the present appellant/plaintiff filed a declaratory suit against Umar Mehmood, a minor, and his father Arshad Mehmood in the Court of Senior Civil Judge Mirpur and prayed for cancellation of gift-deeds dated 04.06.1994 and 05.07.1994 regarding the disputed land bearing survey Nos. 256 and 1174 measuring 07 kanals and 02 marlas situated at village Sangot Tehsil Mirpur. It was stated in the suit that the plaintiff transferred the suit land through gift-deed dated, 04.06.1994 in the name of Muhammad Arshad Mehmood who later on transferred the said land through a gift-deed dated 05.07.1994 in the name of his minor son Umar Mehmood. It was alleged that possession of the disputed land was not handed-over and it stood still with the plaintiff.
So, the deeds of gift without possession of the suit land were liable to be set aside.
3. Written statement was filed by the respondents/defendants and the contents of the suit were denied. During pendency of the suit, parties compromised. And a consent decree was recorded on 08.03.2005 in favour of the present appellant/plaintiff. Feeling dissatisfied, the minor Umar Mehmood preferred an appeal before the learned District Judge Mirpur challenging the validity of the decree, which was made over to the learned Additional District Judge. After hearing the parties, the learned Additional District Judge Mirpur accepted the appeal by setting aside the judgment and decree passed by the leaned Senior Civil Judge Mirpur dated 08.03.2005 regarding the disputed land. The present appellant has filed the instant appeal and prayed to set aside the judgment and decree passed by the learned Additional District Judge Mirpur and to maintain the judgment and decree passed by the learned Senior Civil Judge Mirpur.
4. Arguments were advanced by the learned counsel for the parties. Mr. Muhammad Rafique Dar, Advocate, the learned counsel for the appellant, contended that no appeal could be filed against a consent decree under Section 96 of CPC. The said appeal was filed by mother of the minor instead of guardian of the minor. The learned counsel requested to accept the instant appeal.
5. While controverting the learned counsel for the' appellant, Mr. Bostan Chaudhary, Advocate, the learned counsel for the respondents, contended that father of the minor was not eligible to submit convict without prior permission of the Court. So, the findings recorded by the learned Additional District Judge Mirpur are based in accordance with provisions of law and sound reasoning. The learned counsel requested to dismiss the instant appeal. .
6. After hearing the learned counsel for the parties, I have gone through the record and the relevant law minutely . It is an admitted fact that the present appellant filed a suit in which Umar Mehmood, a minor, was impleaded as a party. A compromise was brought on record in the said suit on behalf of the said minor. It is pertinent to mention here the relevant provision of law regarding compromise on behalf of minor. Order 32, Rule 7, CPC deals with the said proposition, which is reproduced as under:--- "Order 32, Rule 7 of CPC:- Agreement or compromise by next friend or guardian for the suit. (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly, recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor." .
The above-mentioned provision of law contemplates that a guardian ad item shall not be permitted to enter into a compromise with the plaintiff on behalf of the minor without obtaining a prior permission from the Court before which the matter is sub judice against a minor. But the Trial Court did not fulfil the requirements of the said provision of law because the Court was bound to enquire as to whether a. Proposed compromise was in the interest of minor or not and to grant permission to a guardian ad item for the said compromise. Moreover, the parties regarding the deeds of gift were related to each others within prohibited degrees as mentioned under Section 167(2)(b) of Mohammedan Law. So, transfer of possession of land which was subject-matter of the suit was not necessary and gift-deeds could not be set aside. Nobody was appointed as a guardian ad item under Order 32, Rule 3(i) of the minor. The Court was also bound to conduct an enquiry to ascertain that as to whether interest of proposed guardian ad item was not in direct clash of of the minor. As no guardian ad item was appointed the Court, so, the mother of the minor being a de facto guardian was competent enough to watch the interest of her minor son and she was competent to file an appeal before the District Judge being next friend of her minor son.
7. Section 96 of Civil Procedure Code contemplates that an appeal shall not lie from a decree passed with consent of the parties. But it has already been declared that the compromise entered into between the parties could not be treated as a compromise within the meaning of Section 96 of CPC.
Having in view the circumstanced discusses above, the findings recorded by the learned Additional District Judge Mirpur are based on sound and cogent reasoning which need no indulgence by this Court. So, the instant appeal stands dismissed with no order as to costs.
Civil .