Punjab-Haryana High Court
Mool Chand vs Udho Ram on 16 May, 1994
Equivalent citations: (1994)107PLR736
JUDGMENT N.K. Kapoor, J.
1. This judgment shall dispose of Regular Second Appeal No. 2283 of 1986 and Civil Revision No. 1964 of 1988.
2. Plaintiff-appellant filed suit for declaration to the effect that he is exclusive owner in possession of southern portion of House No. RXVII-624/52 (new) and R-VII-624/28 (old) situate in Sham Nagar, Ludhiana shown red in the site plan attached consisting of six rooms one half room, two verandas, kitchens, latrines, passage, stair case and courtyard etc and that the defendant has no right and concern with the same. Relief for permanent injunction restraining the defendant from alienating the suit property as well as interfering or dispossessing the plaintiff forcibly and without recourse to law, was claimed. In addition thereto, mandatory injunction was sought against the defendant directing him to execute a transfer deed in his favour and get the same duly registered. The case set up by the plaintiff is that land under-neath the two separately built houses, one in possession of the plaintiff and other with the defendant was, in fact, purchased jointly, though the sale-deed was executed in the name of the defendant alone. Since there was no dispute between the parties with regard to shares of the two brothers, the plaintiff raised construction upon the area falling to his share about 18 years from the date of filing of the present suit. It has been further averred by the plaintiff that after some time of the construction of the house, dispute again cropped up between the parties, but was resolved with the intervention of the near relations and, ultimately, reduced into writing in the form of family arrangement/family settlement. Somehow, despite this compromise executed on February 7, 1978, yet once again, some differences between the parties cropped up and once again, compromise was arrived at on October 23, 1979 with the intervention of the respectables known to the parties. This settlement was reduced Into writing, which was signed by the parties as well as the witnesses. Pursuance to this agreement, pending suit between the parties was withdrawn. Since the defendant did not adhere to the settlement i.e. transfer of the property by means of a registered sale-deed, the plaintiff has filed the present suit.
3. The defendant put in appearance, filed written statement and controverted various material averments made by the plaintiff. It was averred that the plot in dispute where-upon the plaintiff raised construction with the permission of the defendant is in permissive possession of the plaintiff. As regards the compromise-settlement arrived at between the parties the defendant had stated that a compromise between the parties was arrived at in which the plaintiff had agreed to give him his half share of the plot situate in Janta Nagar, Ludhiana and in lieu thereof, he had agreed to make the plaintiff owner of the property in dispute. In addition thereto, the plaintiff was to give him a sum of Rs. 10,000/-. Since the plaintiff did not adhere to the compromise/settlement, he has got no right to claim relief now being sought. As regards the subsequent two agreements dated February 7, 1978 and October 23,1979, it was stated that the plaintiff has not fulfilled his part of the compromise and so is estopped by his acts and conducts to claim the ownership of the property, which is owned by the defendant as per the registered sale-deed. It was, thus, prayed that the suit merits dismissal and same may be dismissed.
4. In replication, the plaintiff controverted the averments made in the written statement and reaffirmed those contained in the written statement.
5. On the pleadings of the parties, following issues were framed :-
1. Whether the plaintiff is the exclusive owner in possession of southern portion of the house in dispute shown as red in the plan attached with the plaint? OPP
2. Whether the plaintiff is entitled to the injunction as prayed for? OPP
3. If issue No. 1 is not proved, whether the plaintiff has become owner by adverse possession as alleged? OPP
4. Whether the plaintiff has constructed the portion of the house in dispute as alleged? OPP
5. Whether the suit is properly valued for the purposes of Court fee and jurisdiction? OPP
6. Whether the plaintiff is estopped by his own act and conduct to claim ownership as alleged? OPD
7. Whether the defendant is estopped to challenge the ownership of the plaintiff by his act and conduct qua the disputed portion? OPP
8. Whether the suit is bad for cause of action? OPD.
9. What is the effect of the suit filed by the plaintiff as alleged in preliminary objection No. 6 ? OPD.
10. What is the effect of the family settlement-cum-agreements between the parties dated 7.2.1978, 26.1.1974 and 23.10.1979 ? OP Parties.
11. Whether the plaintiff had agreed to give his 1/2 share in the plot in Janta Nagar, Ludhiana and also pay Rs. 10,000/- to the defendant in lieu of the disputed portion shown red in the plan attached with the plaint, if so, its effect? OPP
12. Whether the suit is not maintainable in the present form? OPD.
13. Whether the plaintiff is in possession of the disputed portion shown red in the plan out of the building unit in dispute as a licencee under the defendant, if so, its effect? OPD.
14. Whether the site under the house is jointly owned by the parties? OP parties (objected to onus by the defendant).
15. Relief:
6. For convenience, Issue Nos. 1, 3, 4, 6, 7, 10, 11, 13 and 14 were taken up together and disposed of as evidence in respect of all these issues was almost common.
7. Regarding the material documents i.e. Ex. P4, Ex. DW5/1, Mark X-11/A and Mark X-12, the trial Court came to the conclusion that these are not memorandum of any terms of past settlement and, thus, not admissible in evidence, having not been registered. The trial Court, however, came to the conclusion that the plaintiff raised the entire construction over the southern portion of the plot in dispute. As regards possession of the plaintiff, the trial Court came to the conclusion that the construction over the portion was raised by the plaintiff, who, in fact, had been living for the last more than 20 years. The contention of the plaintiff that he has become owner byway of adverse possession was, however, repelled. Resultantly, the suit of the plaintiff was decreed to the effect that the defendant is restrained from interfering in the possession of the plaintiff, otherwise, than in due course of law.
8. Feeling dis-satisfied with the judgment and decree of the trial Court, an appeal was filed before the District Judge, Ludhiana. Simultaneously, the defendant filed cross objection. Appeal and the cross-objections were disposed of by the Additional District Judge, Ludhiana, vide judgment and decree dated May 24, 1986, dismissing the appeal as well as cross-objection. The lower Appellate Court once again examined the material documents Ex. P4, Ex. DW5/1, Mark X-11/A and Mark X-12. Documents mark X-1/DW-5/1 was not found to be a genuine document as the same was alleged to have been executed on February 7, 1978, whereas non-judicial stamp paper upon which it was reduced into writing, was purported to have been purchased on March 29,1978. Mark 11/A was held to be a deed of partition and not a family settlement. Similarly, Mark X-12 was ignored as the plaintiff did not adhere to the earlier settlement. The lower Appellate Court further came to the conclusion that none of these documents can be termed as family arrangement. Since these had not been registered as per law, the same are in-admissible in evidence for want of stamp and registration charges.
9. The appellant has assailed the judgments and decrees of the Courts below being against law on the short ground that the documentary evidence led by the plaintiff has been mis-read resulting in failure of justice. It has been further contended that both the Courts below have miserably failed to comprehend real meaning of the documents duly executed between the parties with the intervention of near relations on the basis of family settlement.
10. The lower Appellate Court has, in fact, misread the documents. According to the counsel, there are two documents on record of dated February 7,1978. One is mark X-11/A/DW5/1 and the other is mark X-11/A again dated February 7, 1978. The earlier document Ex. DW5/1 (to distinguish it from another document of the same date) is admittedly not signed by both the parties. Thus, in the absence of signatures of the two contending parties, this document is merely a waste paper. Reference made by the lower Appellate Court to discard the later document executed between the parties mark X-12 dated October 23, 1979 amounts to misreading of evidence which can be gone into by this Court Under Section 100 of the Code of Civil Procedure. Further elaborating the counsel urged that the other document mark X-11/A dated February 7, 1978, does not make mention of payment of Rs. 10,000/- in lieu of transfer to be effected on the plot in dispute in favour of the plaintiff. Similarly, there was no dispute dispute between the parties with regard to the execution of the settlement mark X-12 dated October 23, 1979. Not only this, the execution of these documents have, infact, been admitted by the defendant in his cross-examination. Thus, execution of these documents having been admitted by the defendant in his cross-examination. Thus, execution of these documents having been admitted by the defendant, the sole dispute which remains to be resolved, was their admissibility i.e. whether the documents can be termed as memorandum of settlement or these are mere agreements requiring registration. After reading documents mark X-11/A and mark X-12, learned counsel for the appellant with some amount of vehemence urged that these documents were executed pursuance to the agreement arrived at between the parties at the behest of the near relations and friends, Thus, essentially, these are memorandum of settlement. With this view, reliance has been placed upon Kale and Ors. v. Deputy Director of Consolidation and Ors., A.I.R. 1976 S.C., 807.
11. Counsel for the defendant, however, submitted that both the Courts after exhaustively dealing with the oral as well as documentary evidence adduced by the parties, have come to the conclusion that possession of the plaintiff over the suit property is merely permissive and that the defendant is the exclusive owner of the suit property. This being finding of fact, is not amenable to be interfered with Under Section 100 of the Code of Civil Procedure.
12. The crux of the dispute pertains to the determining nature of the documents Mark X-117A, and Mark X-12 dated February 7, 1978 and October 23, 1979 respectively. Before examining these documents, it would be appropriate to keep in mind the long drawn dispute between the parties with regard to the ownership of this property and the various writings executed between them as well as the earlier suit filed by the plaintiff, but got it dismissed in view of one or the other agreement/family settlement. It is admitted case of the parties that the registered sale deed in respect of the plot in question is in the name of the defendant. It is also admitted that long before institution of this suit, construction was raised by the plaintiff from his own funds. Later findings have also been affirmed by both the Court below. Both the Courts have come to the conclusion that the defendant is the owner of the suit property, whereas construction upon it was raised by the plaintiff some 20 years back. As noticed earlier, the execution of the documents Mark X-1VA and Mark X-12 is not denied by either of the parties. These documents bear the signatures of the plaintiff and the defendant as well as of the attesting witnesses. This way, it can be construed these documents to be proved documents. The only controversy between the parties is whether it is a memorandum of settlement as alleged by the plaintiff and thus not required to be registered in terms of Section 17 of the Registration Act or these are only agreements as contended by the defendant. 1 have closely examined these documents in the light of the above noted objections raised by the respective counsels and, am, of the view that these documents were executed pursuance to the settlement arrived at between the parties at the behest of near relations and friends. Expression used in these two documents leaves no manner of doubt that these were intended to be used as memorandum of settlement by the parties. The relevant extract from the documents Mark X-11/A and Mark X-12 dated February 7, 1978 and October 23, 1979, when translated reads as:-
(Mark X-11/A dt. February 7, 1978) "that the plot which is in my name as per registered sale deed, Mool Chand has built up a house over an area measuring 60 x 28-1/2" and so the same belongs to Mool Chand. Since there was dispute with regard to this plot, the relatives with a view to settle the dispute, gave this area upon which Mool Chand had constructed his house so that dispute between the parties ends. It is hence onward, we would remain in possession of the houses in our respective possession and I will not have any claim in the house in possession of Mool Chand nor he will have any share in my house......"
(Mark X-12 dated October 23,1979) "that Mool Chand will withdraw the pending suit on the date fixed and will execute a registered deed in respect of the land upon which Mool Chand has built his house in which he is residing also within 15 days from this settlement. There was already a settlement between the parties on February 7, 1978. In case, I fail to get the sale deed registered within 15 days, then it would be open for the other party to get the same registered through the intervention of the Court.......".
The parties are real brothers and the settlement appears to have been arrived at with the intervention of near relations and friends. Both the above noticed documents appear to be bonafide. Intention was to resolve the family dispute by a fair and equitable division. The Apex Court in Kale's case (Supra) after exhaustively dealing with the subject and the judicial pronouncements reduced essentials of a family settlement in a concretised form thus :-
(1) The family settlement must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division of allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b) ?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or title in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must by assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bonafide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
Interestingly, both the parties placed reliance upon the decision of the Apex Court noticed above. The counsel for the respondent, however, urged that the matter in dispute is more akin to the proposition noticed as Serial No. 4. I find no merit in this contention of the learned counsel for the respondent. Narrations in these documents clearly bring out that some oral agreement/settlement had arrived between the parties with the intervention of near relations and the same has been subsequently reduced in writing. I, accordingly, hold that these are memorandum of settlement requiring no registration Under Section 17 of the Indian Registration Act. Both the Courts have ignored these relevant documents on the ground that these are unregistered documents and, thus, inadmissible. Approach of the Courts below is erroneous. Non-consideration of these documents has, infact, materially effected the outcome of the litigation and construed thus, this Court is not precluded from recording proper findings Under Section 100 of the Code of Civil Procedure. The Hon'ble Supreme Court in Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604, has held where finding of the Courts of fact is vitiated by non-consideration of the relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. Similarly, the Calcutta High Court in Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal. 144 (FB) has held that when finding of fact is vitiated the same raise a substantial question of law in terms of Section 100 of the Code of Civil Procedure.
Accordingly, I accept this appeal, set aside the judgments and decrees of the Courts below and decree the suit of the plaintiff, as prayed for. In view of my decision in this Appeal, revision filed by the defendant challenging the order of the Court staying further proceedings Under Section 100 of the Code of Civil Procedure becomes infructous and is, accordingly, dismissed. In the peculiar facts of the present case, the parties to bear their own costs.