Himachal Pradesh High Court
Narain Chand & Ors vs Smt. Bhago And Ors on 29 September, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 478 of 2002.
Reserved on: 28.9.2015.
.
Decided on: 29.9.2015.
Narain Chand & ors. ......Appellants.
Versus
Smt. Bhago and ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
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For the appellant(s): Mr. Ramakant Sharma, Sr. Advocate with Ms. Soma Thakur,
Advocate.
For the respondents: Mr. B.C.Verma, Advocate for respondent No.1.
rt None for respondents No. 2 & 3.
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Solan, H.P. dated 21.06.2002, passed in Civil Appeal No. 9-NL/13 of 2002.
2. "Key facts" necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff), has instituted a suit for permanent prohibitory injunction against the appellants-defendants (hereinafter referred to as the defendants).
According to the plaintiff, the property measuring 182 sq. ft. as shown in the site plan Annexure P-1, being part and situated in the area of abadi deh, bearing Kh. No. 1086 (1 bighas 14 biswas), comprised in Khewat Khatauni No. 277/371 min, as shown in Annexure P-2, is situated in Village Manpura, Pargana Dharampur, H.B. No. 164, Tehsil Nalagarh, Distt. Solan, H.P. The plaintiff was owner-in-possession of the suit property. She was in the enjoyment of the separate possession and user of the suit property and other ::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 2 property as Proprietor for her residential and cattle purposes, with the knowledge of the all concerned, including defendants who had admitted .
plaintiff to be in such possession. Defendant No. 1, namely, Rattan Singh was the Karta of the Joint Hindu Family, consisting of defendants No. 2 to 8.
The dispute arose between the plaintiff and defendant No. 1. It was settled in Khangi Panchayat on 14.10.1996. Defendant No. 1 has admitted the plaintiff to be in exclusive possession of the suit property.
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3. The suit was contested by defendants No. 1 to 8. It was asserted that the house of defendants and others was situated in Kh. No. 1086. The rt plaintiff was neither owner nor in possession of the suit property. The plaintiff has been given one house built by the defendant No. 1 measuring 40 feet in length and 40 feet in width for her residential purposes in Kh. No. 1083. This house was owned and possessed by defendant No. 1 i.e. Rattan Singh. The plaintiff was given merely right to reside in the said house. The plaintiff in connivance with scribe has wrongly got written compromise that plaintiff had been given vacant plot as well as cattle shed in Kh. No. 1086 and that she would raise construction by 15.6.1997. The defendant No. 1 has never given any vacant plot or cattle shed. Separate written statement was filed by defendant No. 9 i.e. Jeet Ram. It was asserted that he was in enjoyment of the residential house including vacant portion measuring 1990 sq ft. The plaintiff and defendants No. 1 to 8 are having no concern with the same.
4. The replication was filed by the plaintiff. The learned trial Court framed the issues on 24.6.1999. The suit was dismissed vide judgment dated ::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 3 17.10.2001. The plaintiff, feeling aggrieved, preferred an appeal against the judgment and decree dated 17.10.2001. The learned Addl. District Judge, .
Solan, partly allowed the same on 21.6.2002. Hence, this regular second appeal.
5. The regular second appeal was admitted on the following substantial questions of law on 29.10.2002:
"1. Whether the learned lower appellate Court is right in of drawing an adverse inference under Section 114(g) of the Indian Evidence Act for non-appearance of one of the defendants Rattan Singh especially when his son appeared as attorney and rt specifically stated that Rattan Singh is bed ridden and is not mentally fit?
2. Whether the impugned judgment and decree is the result of misreading, misinterpretation as well as mis-appreciation of Ext. P-1 writing dated 14.10.1996?
3. Whether the learned lower appellate court is right in placing reliance upon an unregistered document by ignoring the provisions of Section 17 of the Registration Act as well as that of Transfer of Property Act?
4. Whether the learned lower appellate Court is right in granting an injunction in favour of the plaintiff with respect to an abadi-deh comprised in Khasra number 1086 where the houses of appellants as well as other residents are in existence especially when the plaintiff has failed to show any interest in the land comprised in khasra number 1086?"
6. Mr. Ramakant Sharma, Sr. Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the first Appellate Court has wrongly drawn an adverse inference under Section 114(g) ::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 4 of the Indian Evidence Act, for non-appearance of one of the defendants, namely, Rattan Singh. The first appellate Court has misread and .
misinterpreted Ext. P-1 dated 14.10.1996. The document Ext. P-1 could not be relied upon by the first appellate Court. He lastly contended that the injunction could not be granted in favour of the plaintiff. On the other hand, Mr. B.C.Verma, Advocate for respondent No. 1 has supported the judgment and decree passed by the learned first appellate Court dated 21.6.2002.
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7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully.
rt
8. Plaintiff has appeared as PW-1. She deposed that the suit land was 1 bighas 14 biswas and she was in the possession of the same since her ancestors. She and Rattan Singh used to reside jointly earlier and a document was executed qua the suit land inter se the parties. She has proved Ext. P-1, document. She used to tether cattle over the suit land. The defendants threatened to dispossess her from the suit land. She has also proved copy of Jamabandi Ext. P-2.
9. PW-2 Hem Raj deposed that the compromise was executed inter se the parties in Khangi Panchayat. He has scribed the compromise. The contents of the compromise were read over to the parties and the parties after admitting the contents of the same to be correct, have marked their thumb impressions. He has proved site plan Ext. P-3.
10. DW-1 Narain Chand is the son of Rattan Singh. He was Special Power of Attorney of his father. He has proved Special Power of Attorney Ext.
D-1. Sh. Rattan Singh was not mentally sound. He was treated at ::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 5 Dharampur. Sh. Rattan Singh was the owner-in-possession of the suit land measuring 10 bighas 2 biswas comprised in Kh. No. 1083. He had given .
room measuring 40 ft x 40 ft. to Smt. Bhago. Smt. Bhago was residing there.
Smt. Bhago used to tether her cattle. Kh. No. 1086 is abadi deh. The compromise was qua Kh. No. 1083. The plaintiff, in collusion with scribe had written Kh. No. 1086 in the document instead of Kh. No. 1083.
11. DW-2 Jeet Ram deposed that his abadi is situated in village of Manpura and he the abadi of the village has not been partitioned by way of due process of law. Smt. Bhago has not legal right in the abadi. Sh. Rattan rt Singh had given one room to Smt. Bhago in the abadi deh.
12. DW-3 Dharam Pal has proved the site plan Ext. D-2.
13. According to the recital Ext. P-1 dated 14.10.1996, the plaintiff has taken over the possession of Kh. No. 1086. The document was scribed by PW-2 Hem Raj. He has read over the contents of the compromise to the parties and thereafter after admitting the contents of the same to be correct, the parties have marked their respective thumb impressions. Sh. Rattan Singh has signed the Khangi compromise document Ext. P-1 and the plaintiff has put her thumb impression. Rattan Singh has signed it in Gurmukhi.
14. The learned Single Judge of the Allahabad High Court in the case of Qabool Singh vrs. Board of Revenue and others, reported in AIR 1973 Allahabad 158, has held that the family arrangement already arrived at between the parties does not require registration as it does not create any interest in immovable property by itself. It has been held as follows:
::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 6"5. So far as the question, whether there was a family arrangement between the parties, is concerned. I find that the finding is based upon an appreciation of evidence produced in the case. The trial Court and the Additional Commissioner accepted the evidence and held that there was .
in fact a family arrangement which had been acted upon. This finding was binding upon the Board of Revenue and it did not err in acting on the basis of that finding. Learned counsel for the petitioner urged that the revenue Court erred in relying upon the document incorporating family settlement as the same had not been registered. It has been pointed out by the Additional Commissioner that the family arrangement set up by the plaintiffs was an oral family settlement which did not require any registration. The compromise filed by the parties before the Court merely stated the fact that a family settlement had of already been arrived at between the parties earlier. It was not a document which by itself created an interest in immovable property. In the circumstances, no question of its registration arose. In my opinion the view that as the compromise was merely a memorandum of facts already settled between the parties, it did not require registration is rt correct. Even if the plaintiffs did not acquire any title to the property in dispute by way of succession, they could still acquire the same by virtue of family settlement."
15. In the same volume, in the case of Shyam Sunder and others vrs. Siya Ram and another, reported in AIR 1973 Allahabad 382, the Division Bench has held that a document merely recognizing title or defining a share on the basis of such recognition does not create, declare etc. any right, title or interest in immovable property and requires no registration. It has been held as follows:
"10. On the other hand, the learned counsel for the respondent has placed reliance upon a large number of cases in support of his contention that notwithstanding non-registration, the compromise between the parties in the instant case can be relied upon as a piece of admission on the part of the appellants, or as a recognition of an antecedent title. The compromise, annexure 4, recites that the parties had come to terms. With regard to Lonapur properties it was recited what specific plots will be held by which party. With regard to the property now in dispute, it was mentioned that the appellants had admitted (Tasleem kiya hai) that the respondent had a half share. There was then a prayer that the mutation case be decided in accordance with the terms of the compromise and necessary entries be made in the village records. The order passed by the ::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 7 S.D.O. has, however, not been filed to show that the terms regarding the property now in dispute were not incorporated in the order. We are prepared to proceed on the assumption that the terms were not incorporated. The fact, however, remains that .
before the compromise was filed in the mutation Court, the parties had arrived at a settlement between themselves with regard to both the properties, one the subiect-matter of dispute in that case, and the other not. In respect of the other, now in dispute, the appellants made a categorical admission that the respondent had a half share. It follows, therefore, that what they did was that the appellants recognized the existing title of the respondent and said that their share was half. A recognition of title or definition of a share on the basis of that recognition of cannot be treated as creating, declaring assigning limiting or extinguishing, any right, title or interest in immovable property. Such a recognition may be oral or by a document, and if in a document, it would not require registration. Hiren Bibi v. Sohan Bibi, AIR 1914 PC 44; Devi Dayal v. Wazir Chand, (1921) 61 Ind rt Cas 328 (Lah) and Sailesh Chandra Sarkar v. Bireshwar Chatterjee, AIR 1930 Cal 559 have taken the view that an unregistered document can be relied upon in proof of admission of title. In Hiren Bibi's case, the Privy Council observed that such a compromise can in no sense of the word be an alienation of property but a family settlement in which each party takes a share of the family property by virtue of the independent title which is, to that extent, and by way of compromise, admitted by the other parties.
In Devi Daval's case (Supra) there was a rent deed which stated that one particular property was owned by the members of the family in equal shares end in another particular property one of the executants had a 3/4th share while the rest had a 1/4th share. It was urged that the lease, being for a period of more than one year and not being registered, was not admissible in evidence underSection 49. Registration Act. The Lahore Hish Court held that as a lease or as a document to prove title, it was not admissible, but there was no reason why the admission contained therein cannot be taken in evidence. In Sailesh Chandra's case, a lease was created by a decree based on compromise, which compromise decree was not registered. In addition, it contained a recital that the disputed land did not pertain to the Jama of Rs. 91/-. The Calcutta High Court held that it could not be disputed in view of the decision of the Judicial Committee in Rani Hemanta Kumari Devi v. Midnapur Zamindari Co., AIR 1919 PC 79 that the Sulehnama should have been registered in order to be effective as a lease but at the same time the statement in the Sulehnama, namely, that the lands did not pertain to the Jama of Rs. 91/-might be admitted as evidence ::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 8 as admission made by the parties to the same. As such admission, it would only be a piece of evidence and it would be open to the ,party who made the admission to show that it was made in circumstances which did not make the admission .
binding on him. The decision in Ram Gopal v. Tulshi Ram, AIR 1928 All 641 (FB) is clear that such a recital can be relied upon as a piece of evidence. In that case, a family settlement was arrived at in a mutation case by which the three parties agreed to mutation to the extent of 1/3rd each. The compromise was not registered. The Full Bench laid down five propositions and the fifth one reads thus:--
"If the terms were not reduced to the form of a document"
of registration was not necessary (even though the value is Rs. 100/- or upwards); and, while the writing cannot be used as a document of title, it can be used as piece of evidence for what it may be worth, e.g., as corroborative of other evidence or as an admission of the transaction or as showing or rt explaining conduct."
It is clear, therefore, that the compromise can be taken into consideration as a piece of evidence. The next case relied upon is Bakhtawar v. Sunder Lal, AIR 1926 All 173. This deals with a compromise arrived at in a mutation case. The compromise recited that the parties had already composed their differences regarding the property and had come to an arrangement between themselves by which their names were to be entered in respect of specific property specified therein. It was held that there was no necessity to have the compromise registered, as it did not create, assign, limit, extinguish or declare any title. It contained merely recital of fact by which the Court was informed that, the parties had come to an arrangement. To sum up, therefore, we are of the view that the compromise could have been relied upon as an admission of antecedent title."
16. The learned Single Judge of the Delhi High Court in the case of Smt. Manali Singhal and another vrs. Ravi Singhal and others, reported in AIR 1999 Delhi 156, has held that family settlement between husband and wife for providing maintenance to wife cannot be held to be hit by Section 25 on the ground that it is without consideration. Consideration in such type of settlement is love and affection, peace and harmony and satisfaction to flow therefrom. It has been held as follows:
::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 9"20. Learned counsel for the defendants has then argued that the impugned settlement is without any consideration. Hence the same is hit by Section 25 of the Contract Act. The contention of the learned counsel may be an ingenious one but can be brushed aside without any difficulty.
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Parties more often than not settle their disputes amongst themselves without the assistance of the court in order to give quietus to their disputes once and for all. The underlying idea while doing so is to bring an era of peace and harmony into the family and to put an end to the discord, disharmony, acrimony and bickering. Thus the consideration in such type of settlements is love and affection, peace and harmony and satisfaction to flow therefrom. I am supported in my above view by the observations of the Hon'ble Supreme Court as reported in Ram Charan Das Vs. Girja Nandini Devi and others, ....." Courts give effect to a family of settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in this context is not to be understood in a narrow sense of being a group of persons, who are recognised in law as having a right of succession or having a claim to a share in the property rt in dispute. ....The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the persons bearing relationship with one another. That consideration having passed by each of the disputants, the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter". The same view was again reiterated in Maturi Pullaiah and another Vs. Maturi Narasimham and others."
17. In the instant case also, the compromise has been arrived at between the near relations.
18. Their lordships of the Hon'ble Supreme Court in the case of Bondar Singh and others vrs. Nihal Singh and others, reported in AIR 2003 SC 1905, have held that though unregistered sale deed is inadmissible in evidence but it can be looked into for collateral purposes such as to see nature of possession of party over the suit property. Their lordships have held as follows:
"5. The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up ::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 10 against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear .
law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. It is significant to note that the sale deed is dated 9.5.1931 and Fakir Chand died somewhere in the year 1949-50. During his lifetime Fakir Chand never disputed plaintiffs' title or possession of the suit land. There is other reliable evidence on record of which establishes that the plaintiffs have been in continuous possession of the land in question. There is a notice dated 16.4.1956 Exhibit P.6. The notice was issued on behalf of the defendants and is addressed to the predecessor interest of the plaintiffs. By the notice the defendants called upon the plaintiffs to hand over possession of the suit land to them.
rt According to the notice, the plaintiffs were trespassers on the suit land and were liable to hand over its possession to the defendants. This notice is an admission on the part of the defendants that the plaintiffs were in possession of the suit land at least on the date of the notice i.e. 16th April, 1956. The notice was followed by an application dated 8th May, 1956 (Exhibit P.3). filed by the defendants under Section 58 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 before the revenue authorities. In the said application the defendants admit that the land in question was in possession of the plaintiffs since the lifetime of their father. It is further admitted that the land was being cultivated by the plaintiffs. It was prayed in the said application that the plaintiffs be declared trespassers over the suit land and possession of the land be given to the defendants. In their reply to the application, the present plaintiffs denied the allegation that they were trespassers on the suit land, they refer to the sale deed of 9.5.1931 by Fakir Chand in favour of their predecessor. Thus the plaintiffs were all along asserting that they were in possession of the land in their own right. The Tehsildar vide his order dated 3rd October, 1959 dismissed the said application of the defendants. He relied on an admission on the part of Poonam Chand, eldest son of Fakir Chand that the present plaintiffs were in possession for the last 26-27 years. Relying on the said statement the revenue authorities held that since possession of the present plaintiffs was continuing for last 26-27 years they could not be dispossessed from the suit land. The application of the defendants was dismissed. The defendant filed an appeal against the said order which was also dismissed on 6.8.1962. A copy of the order of the Tehsildar is Exhibit P.8 while a copy of the order of the appellate authority i.e. S.D.O. is Exhibit P.9. These judgments of the revenue authorities establish that at least till 1962 the plaintiffs were in possession of the suit land. They also totally nullify the assertion of the defendants in their written statement in the present suit that they had taken possession of the suit land in 1957-58. If ::: Downloaded on - 15/04/2017 19:01:30 :::HCHP 11 they had taken possession of the suit land in 1957-58 why were they pursuing the matter before the revenue authority till 1962 when the appeal was contested before the S.D.O. and the decision of the S.D.O. was given on 6.8.1962?"
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19. In the instant case, Sh. Rattan Singh has not appeared in the witness box. No tangible evidence has been placed on record by the defendants that Rattan Singh was of unsound mind. No medical certificate to this effect has been placed on record by the defendants. Rattan Singh has of also not led any evidence in rebuttal. The first appellate Court has rightly drawn adverse inference against Rattan Singh under Section 114 (g) of the Indian Evidence Act. The agreement has been signed voluntarily by the rt plaintiff and Rattan Singh. Rattan Singh could not be permitted to wriggle out of the compromise Ext. P-1. Since the plaintiff was in possession of the suit property as per Ext. P-1, the first appellate Court has rightly granted decree of prohibitory injunction against the defendants. The first appellate Court has rightly appreciated the contents of Annexure P-1 as Sh. Rattan Singh has specifically admitted that the possession was given to the plaintiff qua the suit land in Kh. No. 1086. Sh. Rattan Singh was the Karta of the Joint Hindu Family. The substantial questions of law are answered accordingly.
20. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
September 29, 2015, ( Rajiv Sharma ),
(karan) Judge.
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