Jharkhand High Court
Rajesh Singh vs Baleshwar Prasad on 26 July, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 88 of 2007
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.88 of 2007
(Against the Judgment and decree dated 3.02.2007 passed by the Additional
Judicial Commissioner-XVIIth, Ranchi in Title Appeal No.80 of 1987)
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Rajesh Singh, son of Late Raghubir Singh Thakur, MD 157 Hirapur, Virsavarkar Nagar Tantibandh, Raipur and employed at Urly-Growth Centre, Urla Industrial State, P.O. Sarora Raipur.
.... .... .... Appellant Versus
1. Baleshwar Prasad, son of Aditya Sahu, by faith- Hindu, by occupation -not known, R/o Katsarai Road, Ranchi, P.O, Ranchi, P.S. Kotwali, Dist. Ranchi
2. Ganesh Singh Thakur, son of Late Raghubir Singh Thakur, R/o D 26/21, Gayatri Nagar, Raipur at present residing at Kenya and employed as Production Engineer in Doshi Enterprises Ltd. Post Box No.88385, Mombasa Kenya
3. Jagdish Singh son of Late Raghubir Singh Thakur, R/o D-26/11 Gayatri Nagar, Raipur-7 at present residing at U.S.A. and employed at Compridge Technology Partners, Two Towers Centre Blud, 15th Floor, East Brunswick, New Jirsy-08816 U.S.A. ... .... .... Respondents
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For the Appellant : Mr. Satya Narayan Prasad, Advocate For the Respondents : Mr. Ayush Aditya, Advocate
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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of concurrence dated 3.02.2007 passed by the Additional Judicial Commissioner-XVII, Ranchi in Title Appeal No.80 of 1987 by which the learned first appellate court has dismissed the suit of the plaintiff- appellant and held that the judgment and decree by which the Title Suit No.70 of 1975 passed by the trial court being the court of 1 Second Appeal No. 88 of 2007 Additional Munsif, Ranchi requires no interference.
3. The case of the plaintiff-appellant in brief is that the suit land has been recorded in the name of Fauda Mahato and Karinath Mahato and consequent upon the partition between them, the suit plot fell in the share of Fauda Mahato. There was a dispute between Fauda Mahato on the one hand and Bimal Das Gupta and Mathura Singh Ramnath Singh on the other hand which led Fauda Mahato to file Title Suit No.92 of 1967 in the court of Sub-ordinate Judge, Ranchi. The said Title Suit No.92 of 1967 was compromised and by virtue of the said compromise entered into between the parties in Title Suit No.92 of 1967, Bimal Das Gupta and Mathur Singh Ramnath Singh acquired title of the suit land. The plaintiff purchased the suit land from Shri Bimal Das Gupta and Shri Mathur Singh Ramnath Singh vide registered sale deed dated 25.05.1968 for a consideration of Rs.4,000/- and later on 29.12.1973 as the defendants interfered with the possession of the plaintiff over the suit land, the plaintiff lodged a report with Kanke Police station on the basis of which a proceeding under Section 144 Cr.P.C. was drawn up vide Miscellaneous Case No.1372 of 1973 and the said proceeding was converted into proceeding under Section 145 Cr.P.C. and the magistrate erroneously ordered on 28.02.1974 declaring the possession of the defendant over the suit plot. The plaintiff filed the suit with prayer for declaring title over the suit land, decree for recovery and delivery of possession through court by appointment of pleader commissioner, cost of the suit and other reliefs. 2 Second Appeal No. 88 of 2007
4. The defendants-respondents in their written statement besides the technical ground has inter alia pleaded that Fauda Mahato by an agreement of sale dated 17.12.1973 contracted to sell to the defendant 35 ½ decimals of land including the suit land of 18 decimals for a consideration of Rs.5,000/- out of which Rs.4,000/- was paid by him as earnest money on the date of agreement for sale and the defendant no.1 was in possession of the land and in terms of the said agreement of sale, Fauda Mahato later on sold inter alia the suit land vide registered sale deed dated 05.01.1974 to the defendants and the name of the defendants were duly mutated in the sherista of the landlord/State of Bihar in respect of 35 ½ decimals of land including the suit land. The defendants further pleaded that the Title Suit No.92 of 1967 was a collusive suit between Fauda Mahato on the one hand and Bimal Das Gupta and Mathura Singh Ramnath Singh on the other hand hence no title passed or could pass to Bimal Das Gupta and Mathura Singh Ramnath Singh by virtue of said compromise in Title Suit No.92/67. It was also pleaded that the description of the suit land is a vague one. It is next pleaded by the defendants that Fauda Mahato appeared as a witness in Case No. M 1372 of 1972 under Section 145 Cr.P.C. and filed an affidavit to the effect that he never sold any land to Bimal Das Gupta and Mathura Singh Ramnath Singh and as such, the alleged compromise in that suit is obviously a cooked up story. The defendants further pleaded that a petition before the magistrate calling upon the plaintiff to file the compromise petition forming part of the decree in the said Title 3 Second Appeal No. 88 of 2007 Suit No.92 of 1967 was filed but the the plaintiff did not produce the said decree before the magistrate and even though the defendants filed a petition for the copy of the decree and compromise petition in the said Title Suit No.92 of 1967 but the same has not been granted to the defendants as a report has been given that no decree has been deposited in record room. It was further pleaded by the defendants that the alleged sale by Fauda Mahato to Bimal Das Gupta and Mathura Singh Ramnath Singh being unregistered, presumably oral sell of land of the value of Rs.100/- is compulsorily registrable and it was not registered is hit by Section 49 of Indian Registration Act. It is next pleaded that Bimal Das Gupta and Mathura Singh Ramnath Singh has no title in respect of suit plot and the alleged purchase by the registered deed dated 25.08.1968 by the plaintiff cannot confer any title upon the plaintiff.
5. The learned trial court on the basis of rival pleadings of the parties framed the following seven issues :-
(i) Whether the suit as framed is maintainable?
(ii) Whether the plaintiff has any cause of action for the suit?
(iii) Whether court fees paid by the plaintiff is proper satisfactory?
(iv) Whether (vendors of plaintiff) Bimal Das Gupta and Mathura Singh Ramnath Singh acquired any right, title, interest and/or possession over the suit land on the basis of the decree passed on compromise in T.S. 92/67?
(v) Whether the plaintiff acquired any right, title, interest and/or possession by purchase of suit through registered deed dt.4 Second Appeal No. 88 of 2007
25.05.1968 from Bimal Das Gupta and Mathura Singh Ramnath Singh for consideration Rs.4000/-?
(vi) Whether the suit land has been clearly identified and whether suit land claimed by the defendant in suit plot no.2120?
(vii) Whether the plaintiff is also entitled to any relief or reliefs?
6. The learned trial court disposed of the issue no. (iii) as not pressed.
It is pertinent to mention here that the plaintiff-appellant did not file the compromise petition passed in Title Suit No.92 of 1967 in the trial court.
7. The learned trial court on the basis of oral and documentary evidence came to the conclusion that the plaintiff has failed to prove his acquisition of right, title, interest and possession over the suit land and dismissed the suit.
8. Being aggrieved by the judgment and decree passed by the trial court being Additional Musif, Ranchi in Title Suit No.70/75 dated 25.08.1987, the appellant-plaintiff field Title Appeal No.80 of 1987 in the court of Additional Judicial Commissioner No.XVII, Ranchi which was ultimately heard and disposed of by the impugned judgment and decree by the learned first appellate court.
9. During the pendency of the Title Appeal No.80 of 1987, the plaintiff-appellant by way of additional evidence brought on record the compromise decree of Title Suit No.92 of 1967 which was marked as Ext. 4/a, compromise petition filed by the parties which was marked Ext. 4/b and the order of compromise was marked Ext. 4/c. 5 Second Appeal No. 88 of 2007
10. The learned first appellate court framed the following four points for determination :-
(i) Whether Fauda Mahto ever sold any portion of land of suit plot no.2120 to Bimal Das Gupta and Mathura Singh Ramnath Singh transferring his all right, title, interest and possession?
(ii) Whether Bimal Das Gupta and Mathura Singh Ramnath Singh acquired right, title, interest to the suit land and continued in possession thereof under the compromise decree in Title Suit No.92/1967 (Fauda Mahto V/s Bimal Das Gupta)?
(iii) Whether the appellants (plaintiff) acquired any right, title, interest and possession over the suit property through registered sale deed dt.
25.05.1968 executed in favour of original plaintiff Raghubir Singh Thakur?
(iv) Whether the judgment and decree under appeal requires and interference by this first appellate court?
11. The learned first appellate court took up the points for determination no. (i) and (ii) together and considered that there is no pleading in the plaint that in the year 1952 Fauda Mahato transferred the suit land to Bimal Das Gupta and Mathura Singh Ramnath Singh on receipt of Rs.5,000/- followed by delivery of possession nor there is any evidence in that respect. The learned first appellate court also observed that it is a settled principle of law that any transfer of immovable property by a decree of any competent civil court cannot be operative unless the decree is duly registered and as Fauda Mahato has neither executed any sale deed nor any deed of relinquishment in 6 Second Appeal No. 88 of 2007 favour of Bimal Das Gupta and Mathura Singh Ramnath Singh, hence, in the absence of any registered instrument Bimal Das Gupta and Mathura Singh Ramnath Singh cannot acquire any title over the suit land and in the absence of any title in themselves, they were not competent to transfer the same to the plaintiff and adjudicated the points for determination nos. (i) and (ii) against the plaintiff-appellant and in favour of the respondents-defendants. The learned first appellate court consequently answered the points for determination nos. (iii) and (iv) against the appellant-plaintiff and in favour of the respondents-defendants and dismissed the appeal.
12. At the time of Admission of this appeal, vide order dated 08.07.2009, the following two substantial questions of law were formulated :-
(i) Whether the court of appeal below has committed error of law in reversing the findings recorded by the trial court?
(ii) Whether the compromise decree passed in Title Suit No.92/67 is vital document to decide the right, title and interest of the parties?
13. It is pertinent to mention here that even after service of notice to the respondent no.1, the respondent no.1 never appeared in this appeal and though the respondent nos.2 and 3 appeared through the lawyers but when the hearing of the appeal was taken up on 19.07.2022, the respondent nos.2 and 3 did not appear and today also, they did not appear at the time of hearing of the appeal.
14. The predecessor Judge of this Bench on 22.01.2016 passed the following order :-
7 Second Appeal No. 88 of 2007
"On the prayer of the learned counsel for the respondent, put up on 19.02.2016.
Office is directed to mention the name of Ayush Aditya, as the counsel for the respondent in the daily cause list. Office shall supply the photocopies of relevant documents of the judgment and appeal to the counsel for the respondents by the next date."
And Mr. Ayush Aditya is appearing for the respondent by virtue by the said order passed by the Predecessor Judge of this Bench.
15. Mr. Shashank Shekhar, learned counsel for the appellant submits that the first substantial question of law is not a correct one as the impugned judgment and decree passed by the first appellate court is in fact, not a judgment of reversal rather it is judgment of concurrence. It is urged upon by Mr. Shashank Shekhar that as submitted by him at the hearing of the appeal on 19.07.2022 the following additional substantial question of law be formulated :-
"Whether the learned appellate court erred in law by misinterpreting the compromise decree and erroneously observed that transfer of immovable property by a decree of any competent civil court cannot be operative unless the decree is duly registered and also committed an error of law by discarding the compromise decree being Ext. 4/a on the ground that the same has not been registered?"
16. It is then submitted both by Mr. Shashank Shekhar and Mr. Ayush Aditya that since the request for formulating the said additional substantial question of law was made during the hearing of this appeal on 19.07.2022 hence, they are ready to address this Court on this additional substantial question of law and hence, the hearing of the appeal be completed today itself keeping in view the fact that this is an years old appeal and they do not require any further time to address the Court on the additional substantial question of law. 8 Second Appeal No. 88 of 2007
17. Because of such submissions made at the Bar, the said additional substantial question of law as mentioned in paragraph 15 of this judgment is formulated and this appeal is heard and disposed of today by this Judgment.
18. It is next submitted by Mr. Shashank Shekhar, learned counsel for the appellant that Section 17 (2) (vi) of the Registration Act, 1908 which reads as under :-
"17. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to--
Xxxxxxxxxxxx
(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-
matter of the suit or proceeding; or"
Exempts any decree or order of a court including a decree or order made on a compromise, if the immovable property in respect of which the compromise is made is the subject matter of the suit or proceeding.
19. It is next submitted by learned counsel for the appellant that the plaint of Title Suit No.92 of 1967 which has been marked Ext. 8 categorically shows that this suit land was the subject matter of Title Suit No.92 of 1967 as well, hence, the learned first appellate court has committed error on two counts first is that, it misdirected itself by observing that a compromise decree passed by a court of law in all cases, requires registration mandatory when the law is otherwise and secondly, as the suit property of this suit is the subject matter of Title Suit No.92 of 1967, the first appellate court ought not have discarded 9 Second Appeal No. 88 of 2007 the compromise decree passed in Title Suit No.92 of 1967, on the ground that the same has not been registered, because it is not the case of the plaintiff that the vendors of the plaintiff namely Bimal Das Gupta and Mathura Singh Ramnath Singh have acquired title by any sale deed or deed of relinquishment as erroneously observed by the first appellate court even though, there is no pleading to that effect rather it is specific case of the plaintiff that the said two vendors of the plaintiff Bimal Das Gupta and Mathura Singh Ramnath Singh acquired title by virtue of compromise decree in Title Suit No.92 of 1967. Mr. Shashank Shekhar next submitted that in Title Suit No.70/75, the defendants have pleaded that decree passed by the competent court in Title Suit No.92 of 1967 was the collusive one but even after coming to know about the same as is evident from the pleadings of the defendants to the effect that "the said decree was a collusive one"; as well as from the fact that the plaint of Title Suit No.92 of 1967 was marked Exhibit on 23.08.1980 in Title Suit No.70/75 which also implies that the defendants of were knowing about the existence of decree, but the failure on the part of the defendants to challenge the said decree passed in Title Suit No.92 of 1967 either by filing a separate suit or at least a cross suit, the validity of the said compromise decree, which was passed by the competent court of law in Title Suit No.92 of 1967, ought not have been set at naught by the first appellate court. In support of this contention of him as well compromise or consent decree do not require registration, even if it creates title in respect of immovable property of the value of Rs. 100 or more, provided it is 10 Second Appeal No. 88 of 2007 subject matter of suit, the learned counsel for the appellant relied upon a number of judgments, the first judgment being of Punjab and Haryana High Court in the case of Gurdev Kaur and Another vs. Mehar Singh And Others reported in AIR 1989 Punjab And Haryana 324, paragraph no.1 and 27 of which reads as under :-
"1. Twin questions of law, namely, whether a compromise or consent decree regarding immoveable property of the value of Rs. 100 or more, which is subject matter of the suit, would require registration or not; and whether such a decree can be re-opened in a subsequent suit by going behind the decree, re-opening all the facts even if it is proved that the decree was not obtained by fraud, coercion or mis-representation, that is, the grounds on which a contract can be avoided, arise in this appeal, which has been admitted to Division Bench for determination in view of the conflict of opinion between the Single Bench decisions of this Court.
27. For the reasons recorded above, we hold:
(i) that a compromise or consent decree does not require registration, even if it creates title in respect of immovable property of the value of Rs. 100 or more, provided it is subject matter of suit.
(ii) that a compromise or consent decree can be got set aside on one of the grounds on which a contract can be set aside, namely, if obtained by 'fraud'; 'mis-representation', or 'coercion', with an additional ground in favour of the minors or persons of un-sound mind, if they are able to prove that the next friend or the guardian, who acted on their behalf, was negligent in conducting the proceedings.
If none of these grounds is established, the Courts in a subsequent suit will have no jurisdiction to go behind the consent decree to find out whether the facts stated in the plaint, which culminated into compromise decree were right or wrong." (Emphasis supplied)
20. Mr. Shashank Shekhar next relied upon the judgment of Hon'ble Madras High Court in the case of M. Pappu Reddiar (died) and others v. Amaravathi Ammal and others reported in AIR 1971 Madras 182, paragraph no.5 of which reads as under :- 11 Second Appeal No. 88 of 2007
"5. Rani Hemanthakumar Debi v. Midnapur Zamindari Co. Ltd.(1) held that consent decrees did not require registration even if they included immoveable property not the subject matter of the suit. S. 17(2)(vi) of the Indian Registration Act was, therefore, amended in 1929, so as to confine the exemption from registration to consent decrees restricted to the subject-matter of the suit. After the amendment a consent decree comprising of immoveable property not the subject-matter of the suit or proceeding requires registration. But the courts below were of the view, and we think rightly, that in the instant case, although the properties in dispute were not mentioned in the plaint schedule in O.S. 76 of 1948, nevertheless, they should be regarded as the subject-matter of that suit, in as much as their allotment to one or the other of the plaintiffs in the suit was inseparable from the other provisions of the compromise decree and constituted part of the consideration for the compromise. We think that this is a correct view to take. The words "the subject-matter of the suit" in S. 17(2)(vi) cannot be read as subject matter of the plaint not even as subject matter in dispute in the suit or proceeding. If the consent decree or order in the suit or proceeding covered the property, although it was not in the plaint or in dispute, such property constituting, as it does, an inseparable part of the consideration for the compromise, may, well in our view, be regarded as the subject-matter of the suit. This is because the decree passed on the basis of the compromise cannot stand without that property. If by the amendment it was intended that if the property was not in the plaint-schedule, the consent decree should not be exempted from registration, we are afraid the phraseology actually employed by S. 17(2)(vi) has failed to achieve the objective. We are aware that the extended scope we have given to the expression "subject-matter of the suit" may narrow down the scope of the exclusion from exemption from registration under that provision. In Govindasami Muadliar v. Rasu Mudaliar(2) there was an attachment before judgment in a suit to recover money. When the relative application came up for final disposal, there was a compromise on the basis of which a decree followed. It provided for payment of the amount claimed in the suit on certain terms and the decree debt was made a charge over the properties which had been earlier attached. Venkatasubba Rao J., held that the property was the subject-matter of the proceeding within the meaning of S. 17(2)(vi). We are in respectful agreement with this view of the scope of the expression "subject matter of the suit or proceeding" in that section. This view in also justified by the approach in Ramdas Sah and another v. Jagannath Prasad(1). On that view, it follows that the plaintiff's claim based on want of registration of the compromise 12 Second Appeal No. 88 of 2007 decree, falls." (Emphasis supplied)
21. Mr. Shashank Shekhar next relied upon the judgment of Hon'ble Supreme Court of India in the case of Bachan Singh vs. Kartar Singh and Ors. reported in 2001 (10) JT 64, paragraph no.2 of which reads as under :-
"(2) LEARNED counsel appearing for the appellant urged that the decree passed in suit no. 1365/81 was void, having obtained by fraud and, therefore, it could be avoided under section 44 of the Evidence Act. We do not find any merit in the argument. It may be stated that the plaintiff was the defendant in the suit no.1365/81 filed by the respondents. In the said suit, the claim of the respondents was admitted by the present plaintiff-appellant and on the basis of the said admission, the suit was decreed. In case the present appellant was not satisfied with the decree, either he could have filed an appeal or moved an application for setting aside the decree alleged to have been obtained by fraud. Before the first appellate court, the plaintiff-appellant stated that there was no fraud in passing the decree in suit no. 1365/81, but the appellate court set aside the decree of the trial court on the ground that the decree was a sale only to overcome the provisions of the Indian Registration Act. This view of the appellate court was not correct. A consent decree passed by the court is not required to be registered under the provisions of the Indian Registration Act and, therefore, the view taken by the first appellate court was not legally correct and has been rightly set aside by the High Court. We are, therefore, in agreement with the view taken by the High Court." (Emphasis supplied)
22. Mr. Shashank Shekhar further in this respect relied upon the 13 Second Appeal No. 88 of 2007 judgment of Honb'le Supreme Court of India in the case of Mohammade Yusuf and Ors. vs. Rajkumar and Ors. reported in AIR 2020 SC 796, paragraph no. 14 of which reads as under :-
"14. In the facts of the present case, the decree dated 4-10- 1985 was with regard to the property, which was the subject-matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and the present case is covered by the main exception crafted in Section 17(2)(vi) i.e. "any decree or order of a court". When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clauses (b) and (c) of sub-section (1) applies to any decree or order of the court, we are of the view that the compromise decree dated 4-10-1985 did not require registration and the learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 7-1-2015 as well as the judgment of the High Court dated 13-2-2017 [Mohd.
Yusuf v. Rajkumar, 2017 SCC OnLine MP 2056] . The compromise decree dated 4-10-1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly. (Emphasis supplied)
23. Mr. Shashank Shekhar next relied upon the judgment of Hon'ble Supreme Court of India in the case of Harjas Rai Makhija v. Pushparani Jain & Anr. reported in (2017) 2 SCC 797, paragraph no.20 of which reads as under :-
"20. We agree that when there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point."
(Emphasis supplied)
24. Mr. Shashank Shekhar thereafter relied upon the judgment 14 Second Appeal No. 88 of 2007 of Hon'ble Supreme Court of India in the case of Sneh Gupta v. Devi Sarup & Ors. reported in (2009) 6 SCC 194, paragraph no.58 and 59 of which reads as under :-
"58. If the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. (See Mohd. Noorul Hoda v. Bibi Raifunnisa [(1996) 7 SCC 767] .)
59. Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As the appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28-2-2002 i.e. after a gap of four years. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafter." (Emphasis supplied) and submits that the defendants have not challenge the compromise decree passed in Title Suit No.92 of 1967, there is no way the first appellate court could have not relied upon the same.
25. Mr. Shashank Shekhar in support of his contention that in the absence of any challenge to the compromise decree passed in Title Suit No.92 of 1967 the same ought to have been relied upon by the first appellate court, relied upon the judgment of Hon'ble Supreme Court of India in the case of M. Meenakshi & Ors. v. Metadin Agarwal & Ors. reported in (2006) 7 SCC 470, paragraph no.18 of which reads as under :-
"18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence 15 Second Appeal No. 88 of 2007 of the authorities who were the authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities."
(Emphasis supplied)
26. It is lastly submitted by Mr. Shashank Shekhar that the impugned judgment and decree passed by the learned first appellate court being not sustainable in law and being a perverse judgment having been passed on erroneous consideration of law and facts, the judgments and decrees passed by both the courts below be set aside and the suit of the plaintiff be decreed and the title of the plaintiff over the suit land be declared and a decree for recovery and delivery of possession through court by appointment of pleader commissioner, cost of the suit be passed.
27. Mr. Ayush Aditya, Advocate on the other hand appeared in this appeal on the basis of order dated 22.01.2016 passed by this court in this appeal as already indicated above in this judgment, relied upon the judgment of Hon'ble Supreme Court of India in the case of Bhoop Singh v. Ram Singh Major & Ors. reported in (1995) 5 SCC 709, paragraph nos.8, 16, 17, 18 of which reads as under :-
"8. Coming to the post-Independence decisions, the first to be pressed into service is that of the High Court of Assam and Nagaland in Sudhir Chandra Guha v. Jogesh Chandra Das [AIR 1970 A&N 102 : Ass LR (1970) Ass 54] . This decision does support the legal submission advanced by Shri Sehgal inasmuch as it has been held that the compromise decree in an earlier suit being relatable to immovable property which was subject-matter of the suit, Section 17(2)(vi) of the Registration Act did exempt the decree from registration. It was, therefore, held that the compromise decree in question was not required to be registered for conferring title in respect of property in the decree as per its terms. Surjya Kumar Das v. Maya Dutta [AIR 1982 Cal 222 : (1982) 86 CWN 359 : (1982) 1 Cal LJ 179] also sustains the legal proposition advanced by the 16 Second Appeal No. 88 of 2007 learned counsel to the extent that a compromise decree confined to the subject-matter of suit does not require registration to confer title by its force.
16. We have to view the reach of clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.
17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable.
18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below:
(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration.
(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.17 Second Appeal No. 88 of 2007
(5) If the property dealt with by the decree be not the "subject-matter of the suit or proceeding", clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated." (Emphasis supplied) Thus, if the consent terms create a right for the first time as contradistinguished from recognition of a right, registration thereof would be required, if the value of the property is Rs 100 and upwards.
And submits that the Hon'ble Supreme Court of India has enunciated the law that compromise decree if bona fide in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration. And in this case since the compromise decree was to create for the first time right, title and interest of immovable property of value of more than Rs.100 in favour of vendors of the plaintiff, the decree passed in Title Suit No.92 of 1967 requires registration but the same having not being registered, the learned first appellate court has rightly discarded the same.
28. Mr. Ayush Aditya in support of his submission has further relied upon the judgment of Hon'ble Supreme Court of India in the case of Ripudaman Singh vs. Tikka Maheshwar Chand reported in (2021) 7 SCC 446, paragraph nos. 6,7 and 17 of which reads as under :-
"6. The only question in the present appeal is whether a compromise decree in respect of land which is not the subject-matter of suit but is part of the settlement between the family members requires compulsory 18 Second Appeal No. 88 of 2007 registration in terms of Section 17(2)(vi) of the Registration Act, 1908. The relevant provision of clause (v) and clause (vi) of sub-section (2) of Section 17 of the said Act reads as under:
"17. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to--
* * *
(v) any document other than the documents specified in sub-section (1-A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding];"
7. We find that the judgment and decree passed by the High Court is clearly erroneous and cannot be sustained in law. The parties are the sons of late Vijendra Singh. As an heir of the deceased, the appellant had a right in the estate left by the deceased. Therefore, it was not a new right being created for the first time when the parties entered into a compromise before the civil court but rather a pre-existing right in the property was recognised by way of settlement in court proceedings.
17.Bhoop Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] was a case dealing with both the situations, decree between the parties where the decree-holder does not have any pre-existing right in the property and also the situation where decree-holder has a pre-existing right. It was the second situation where the decree-holder has a pre-existing right in the property, it was found that decree does not require registration. In K. Raghunandan case [K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102] , the dispute was not amongst the family members but between neighbours regarding right over passage. Obviously, none of them had any pre-existing right over the immovable property in question." (Emphasis supplied)
29. Hence, it is submitted that the first appellate court having rightly not accepted the compromise decree as the same though compulsorily registerable was not registered. Hence, it is submitted that the impugned judgment and decree passed by the first appellate court do not suffer from any infirmity hence, this appeal being without any merit be dismissed.
30. Having heard the submissions made at the Bar and after 19 Second Appeal No. 88 of 2007 carefully going through the materials in the record, as rightly and fairly submitted by the learned counsel for the appellant that the judgment passed by the first appellate court was the judgment of concurrence and not reversal, so, this Court is of the considered view that the first substantial question of law was erroneously framed. The same is answered accordingly.
31. Now coming to first limb of the additional substantial question of law formulated in this appeal, as to whether the learned appellate court erred in law by misinterpreting the compromise decree and erroneously observed that transfer of immovable property by a decree of any competent civil court cannot be operative unless the decree is duly registered is concerned, it is crystal clear that the learned first appellate court has committed an error of law by observing that it is a settled principle of law that any transfer of immovable property by a decree of any competent civil court cannot be operative unless the decree is duly registered rather the settled principle of law just diametrically opposite. There is absolutely no ambiguity that Section 17 (2) (vi) of the Registration Act, 1908 in no uncertain manner exempts decree or order of a court from registration the rider is in respect of decree made on compromise. The law in this respect has been enunciated by the Hon'ble Supreme Court of India in the case of Bhoop Singh v. Ram Singh Major (supra) paragraph no.18 of which has already been mentioned above in paragraph no.27 of this Judgment. The Hon'ble Supreme Court of India approbated the ratio of the case of Bhoop Singh v. Ram Singh Major (supra) by observing 20 Second Appeal No. 88 of 2007 thus in paragraph-38 in the case of K. Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102 which reads as under:
38. A statute must be construed having regard to the purpose and object thereof. Sub-section (1) of Section 17 of the Act makes registration of the documents compulsory. Sub-section (2) of Section 17 of the Act excludes only the applications of clauses (b) and (c) and not clause (e) of sub-
section (1) of Section 17. If a right is created by a compromise decree or is extinguished, it must compulsorily be registered if the compromise decree comprises immovable property which was not the subject-matter of the suit or proceeding. Clause (vi) is an exception to the exception. If the latter part of clause (vi) of sub-section (2) of Section 17 of the Act applies, the first part thereof shall not apply. As in this case not only there exists a dispute with regard to the title of the parties over the passage and the passage, itself, having not found the part of the compromise, we do not find any infirmity in the impugned judgment.
So, this Court has no hesitation in holding that the first appellate court has committed grave error of law in this respect by observing that transfer of immovable property by a decree of any competent civil court cannot be operative unless the decree is duly registered.
32. Now coming to the second limb of the additional substantial question of law formulated as to whether the first appellate court committed an error of law by discarding the compromise decree being Ext. 4/a on the ground that the same has not been registered though the compromise decree passed by the competent court of law in Title Suit No. 92 of 1967 was compulsorily registerable is concerned, this Court has no hesitation in holding that undisputedly, the suit land of this suit i.e. Title Suit No.70 of 1975 was subject matter of Title Suit No.92 of 1967. Though the defendants took the plea in their written statement that the said decree is a collusive one but the defendants of the suit having not filed any separate suit to declare the compromise 21 Second Appeal No. 88 of 2007 decree passed in Title Suit No.92 of 1967 as null certainly, the first appellate court erred by discarding the same in view of the settled principle of law in the case of Bachan Singh vs. Kartar Singh and Ors. (supra).
33. Perusal of Ext. 4/b reveals that the case of the defendants in Title Suit No.92 of 1967 was that the defendants namely Bimal Das Gupta and Mathur Singh Ramnath Singh purchased the suit land of Title Suit No.92 of 1967 from the plaintiff of that suit namely Fauda Mahato for a consideration of Rs.5,000/- and were inducted in possession of the suit land. So, it cannot be said that Bimal Das Gupta and Mathur Singh Ramnath Singh were not having preexisting right, as submitted by Mr Ayush Aditya, the learned counsel. Hence, this Court is of the considered view that Ext. 4/a which is the compromise decree passed by the court of Special Sub-Judge, Ranchi is exempted under Section 17 (2) (vi) of the Registration Act, 1908 from compulsory registration. Hence, this Court has no hesitation in holding that the learned first appellate court has committed grave error of fact and law by discarding the said compromise decree and the evidence in the record is sufficient to establish that the vendor of the plaintiff being Bimal Das Gupta and Mathur Singh Ramnath Singh acquired title by virtue of that compromise decree. More so, when the said compromise decree has not been challenged by the defendants by filing separate suit. As he is evident from the settled principles of law as discussed above in this judgment, the only way the defendants could have avoided the compromise decree in Title Suit No. 92 of 1967 is that, if it 22 Second Appeal No. 88 of 2007 would have been established to have been obtained by fraud or collusion but without such specific declaration that the said compromise decree in Title Suit no.92 of 1967 was bad for having been obtained by fraud or collusion, obviously by filing a separate suit, which the defendants have failed to do though they were conscious and aware of such compromise decree since long before, hence certainly the said compromise decree in the absence of any legal declaration by a competent court of law of having been obtained by franchising fraud or by collusion, the same could not have been avoided by the first appellate court and certainly the first appellate court committed an error in this respect. There is no dispute that the plaintiff purchased the suit land from Bimal Das Gupta and Mathur Singh Ramnath Singh by registered sale deed dated 25.05.1968 for a consideration of Rs.4000/-. So obviously, the plaintiff acquired title and possession in respect of suit land of the said sale deed dated 25.05.1968. Since Fauda Mahato ceased to have any title over the suit land from the date of compromise decree dated 15.06.1967. So on 17.12.1973, he did not have any right, title and interest over the suit land to enter into an agreement for sale and similarly, on 05.01.1974, Fauda Mahato did not have any right, title and interest in respect of the suit land to transfer the same to the defendants by way of registered sale deed. Hence, this Court is of the considered view that registered sale deed executed by Fauda Mahato in favour of defendant on 05.01.1974 cannot confer any title upon the defendant as from 15.06.1967, Fauda Mahato ceased to have any right, title and interest in 23 Second Appeal No. 88 of 2007 respect of the suit land. Thus, the first appellate court committed grave error in this respect. The second limb of the additional substantial question of law is answered accordingly.
34. So far the second substantial question of law as to whether the compromise decree passed in Title Suit No.92/67 is vital document to decide the right, title and interest of the parties is concerned, because of the discussion made above, the compromise decree passed in Title Suit No.92 of 1967 is certainly a vital document as the same has conferred the right, title and interest of the suit land upon the vendors of the plaintiff and consequently the vendors of the plaintiffs have transferred the right, title and interest in respect of the suit land to the plaintiff by way of sale deed. Thus the right, title and interest of the parties in respect of the suit land is solely based on the compromise decree passed in Title Suit No.92/67; as if that document is treated to be valid and can be acted upon then only the plaintiff will succeed in establishing his title but if the compromise decree passed in Title Suit No.92/67 is held to be not valid and not operative, then the plaintiff will not have any title over the suit land. The second substantial question of law is answered accordingly.
35. Because of the discussions made above, the impugned judgment and decree passed by both the courts being the first appellate court and the trial court is set aside and Title Suit No.70 of 1975 filed by the plaintiff is decreed on contest. It is declared that the plaintiff-appellant is having title over the suit land and the defendants- respondents are directed to deliver the vacant possession of the suit 24 Second Appeal No. 88 of 2007 land to the plaintiff-appellant within a month from the date of this Judgment, failing which the plaintiff will be entitled to recover and possession of the suit land from the defendant through the process of the court.
36. In the result, this appeal is allowed but in the circumstances without any costs.
37. Let a copy of this Judgment along with the Lower Court Records be sent to both the learned courts below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th July, 2022 AFR/ Sonu-Gunjan/-
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