Sri Kumudeswar Debnath vs The State Of Tripura on 30 May, 2017

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Tripura High Court

Sri Kumudeswar Debnath vs The State Of Tripura on 30 May, 2017

BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioners : Mr. S. C. Das, Advocate For the respondents : Mr. K. N. Bhattacharjee, Sr. Advocate Ms. S. Chakraborty, Advocate Date of hearing : 30.03.2017 Date of delivery of judgment and order : 30.05.2017 Whether fit for reporting : YES Judgment and Order Heard Mr. S. C. Das, learned counsel appearing for the petitioners as well as Mr. K. N. Bhattacharjee, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the respondents.

[2] By means of this petition filed under Article 227 of the Constitution of India, the petitioners have challenged the order dated 22.08.2015 passed by the Secretary, Revenue Department, Government of Tripura in Revenue Appeal No. 27 of 2014 and Revenue Second Appeal No. 42 of 2014. The petitioners have further urged this Court to exercise its supervisory power to scrap and set aside the Khatian No. 2882 of Mouja Sovapur (Annexure-12 to the writ petition). [3] The brief fact leading to this challenge is that a suit was instituted by the predecessor of the petitioners, namely Jogneswar Debnath being T.S. 19 of 1991 in the Court of the Civil Judge (Junior Division), Sonamura, against the respondent No. 2. The suit was decreed on 17.03.1998 on the basis of a solenama (compromise deed) between the plaintiff and the defendant No. 1 in the suit. But according to the CRP. No. 44 of 2016 Page 2 of 15 petitioners the said solenama was never registered as required by law and hence, the solenama became legally invalid and unenforceable or in- executable. According to the petitioners the solenama thus, has lapsed. [4] The petitioners have claimed that they never handed over the possession of any land to the respondent No. 2 on the basis of the said compromise deed. For purpose of reference it would be apposite to refer to the solenama as entered between the predecessor of the petitioners and the respondent No. 2(part of Annexure-3) which reads as under:

"Terms of compromise (1) From out of 0.10 acre of land within the amended Schedule-A of the plaint, the plaintiff will get 0.01 acre and the defendant will get 0.09 acre. Since there is a building of the plaintiff inside 0.09 acre area of land, the defendant will pay to the plaintiff an amount of Rs. 65,000/- (Rupees sixty five thousand) as the cost of the building.

(2) Rs. 65,000/- (Rupees sixty five thousand) only and the plaintiff handed over to the defendant on 13.02.1998 the possession and (illegible) of the building standing on his 0.09 acre of land.

(3) From today the plaintiff will start possessing 0.01 acre of land described in Schedule-"KA" and the defendant will not raise any claim or objection and any claim or objection made by the defendant or his heirs shall stand rejected in the eye of law.

(4) From today the defendant will start possessing 0.09 acre of land described in Schedule-"KHA" which is within 0.10 acre of land mentioned in the plaintiff's amended plaint and get the same mutated in his name and the plaintiff shall have no claim or objection to the same at present or in future. If the plaintiff or his heirs make any claim or raise any objection, the same will be stand rejected in the eye of law.

In view the circumstances mentioned above, it is prayed that the learned Court would be pleased to treat the case to have been compromised in terms of the solenama and dispose of the case without proceeding further."

The translated text of the original solenama as extracted above has been provided by the petitioners. [5] From a keen reading it would be apparent that the petitioners were not in possession after 13.02.1998 as on that day CRP. No. 44 of 2016 Page 3 of 15 according to the plaintiff, he handed over the possession to the defendant No. 1 of suit on accepting the deed of compromise, which more elaborately provides description of the boundaries of the land concerned. The court of Civil Judge (Junior Division), Sonamura, West Tripura, had passed the compromise decree on 17.03.1998 having ordered as under:

"Perused the solenama. The contention of solenama does not suffer from any legal constraints. Hence, the solenama is accepted.

The suit is decreed on compromise on the spirit of solenama that is on the line of compromise reached between the parties. The solenama shall form part of the decree."

The defendant No. 2 never participated in the suit and against him the suit proceeded ex-parte.

[6] The respondent No. 2 was the defendant No. 1 in the said suit. According to the petitioners, after lapse of about 9 years the respondent No. 2 had approached for mutation of the records (vide Mutation Case No. M.R 972 of 2007). The said mutation case was dismissed by the Revenue Authority and hence, against the dismissal order, the respondent No. 2 filed an appeal being Revenue Appeal No. 104 of 2013 under Section 93(1) (b) of the TLR & LR Act, 1960. [7] The DM & Collector, Sepahijala District by the order dated 27.09.2014 allowed the said revenue appeal being Revenue Appeal No. 104 of 2013 with a direction to the respondent No. 2 that he should submit a fresh mutation prayer before the Deputy Magistrate & Collector, Sonamur, for mutation of the land mentioned in the Schedule- B of the solenama. The relevant part of the order dated 27.09.2014 is extracted hereunder:

CRP. No. 44 of 2016 Page 4 of 15

"Heard both of the parties in extenso. This is a matter of an appeal U/S 93(I)(b) of TLR & LR Act, 1960 preferred by the appellant Sri Haripada Das against the order passed by the SDM, Sonamura on 16.11.2013 in mutation appeal case No. 972 of 2007.

In fine, the case of appellant is that one Joggeshwar Debnath S/O Shyamsundar Debnath was allotted 1.63 acres of land in mouja Sovapur in the year 1963 vide original survey plot No. 3034 and others and recorded in Khatian No. 1309. During revision record of right land of old plot No. 3034 had been fragmented and newly numbered as 3005, 3006, 3007, 3008 & 3009 with area measuring 0.01 acres, 0.01 acres, 0.04 acres & 0.04 acres respectively and recorded in Khatian No. 1961 showing possession of the appellant against plot No. 3008 & 3009 as permissive possessor. Sri Joggeshwar Debnath, the OP of the present case, being the sole owner of land as allottee, preferred a suit vide No. T.S. 19 of 1991 in the Court of Civil Judge (Junior Division), Sonamura against the appellant Haripada Das and others claiming for suit for declaration, recovery of possession and perpetual injunction in respect of revisional survey plot Nos. 3006, 3007, 3008 & 3009 of mouja Sovapur. In the case the appellant of instant appeal claiming title of the suit land by adverse possession.

Both the parties ultimately settled the dispute amicably by executing a compromise petition/Solenama. According to the terms & conditions of solenama, the OP of the present case admitted the ownership of appellant Sri Haripada Das over the land of plot Nos. 3006, 3008 & 3009 measuring 0.09 acres. Ld. Civil Judge (Junior Division) in his order dated 27.031998 accepted the solenama as decree with observation that "the contention of Solenama does not suffer from any legal constraints. Hence, the solenama is accepted".

Based on the solenama, the appellant filed a mutation petition U/S 46 of the TLR & LR Act, 1960 before the Deputy Collector, Sonamura for sanction of mutation in respect of plot Nos. 3006, 3007 & 3008 of Khatian No. 1961 instead of plot Nos. 3006, 3008 & 3009. The mutation petition was finally disallowed by the competent authority. Being aggrieved with the order, the appellant preferred first appeal in the Court of SDM, Sonamura seeking redress. The SDM, Sonamura rejected the appeal by his order dated 16.11.2013 on the ground that the solenama is not a registered instrument as require U/S 46 of the TLR & LR Act, 1960 for consideration of mutation.

Now, for disposal of the present appeal, the following issues/ points have been arisen/evolved for decision:

(i) Whether the allottee land can be transferred by an allottee himself?

(ii) The solenama executed by both the parties and duly accepted by the Ld. Court of Civil Judge (Junior Division), Sonamura as a part of decree can be treated as instrument for sanction of mutation U/S 46 of the TLR & LR Act, 1960?

(iii) The allottee was provided land as per Allotment Rules 1960 where the allottee was restrained from transfer of land within 10(ten) years from the date of allotment. Sri. Joggeshwar Debnath was allotted land in the year 1963 and the restriction in transfer of land remained in force up to 1973. After 1973, the allottee was entitled to transfer his allottee right over the land to any individual.

CRP. No. 44 of 2016 Page 5 of 15

(iv) The Section 46(1) of the TLR & LR Act, 1960 provides that any person survivorship, in-heritance, partition, purchase, gift, mortgage, or otherwise any right in land................shall report to the village account for mutation.

Thus, their cannot be any bar to admit the solenama, accepted by the Ld. Civil Court as a part of the decree for consideration of mutation.

In para-iv of the solenama executed by both the parties (appellant and opposite parties) in T.S. Case No. 19 of 1991 clearly mentioned that the appellant would be entitled to get mutation of land measuring 0.09 acres under plot No. 3006, 3009 & 3009 recorded in Khatian No. 1961 in the name of OP Joggeshwar Debnath S/o Shyamsundar Debnath of mouja Sovapur under Sonamura Sub-Division.

Now, considering all the facts deftly as stated ut supra, the appeal of Sri Haripada Das is allowed. The appellant is directed to submit a fresh mutation prayer before the Deputy Collector & Magistrate, Sonamura for the land measuring 0.09 acres under plot No. 3006, 3008 & 3009 as laid down in scheduled "B" of solenama dated 17.03.1998.

The appeal is therefore disposed of accordingly." [8] From the said order dated 27.09.2014 it appears that the ground of rejection by the Sub-Divisional Magistrate, the mutation authority is that the solenama is not a registered instrument as required under Section 46 of the TLR & LR Act, 1960 for consideration of the mutation.

[9] The petitioners have challenged the order dated 27.09.2014 by filing an appeal before the Secretary, Revenue Department, Government of Tripura under Section 93(2)(b) of the TLR & LR Act, 1960 being Revenue Appeal No. 42 of 2014. The respondent No. 2 filed another petition under Section 95 of the TLR & LR Act, 1960 for correction of the records in respect of the suit land and the same was registered as Revenue Case No. 38 of 2013. The DM & Collector after making an inquiry through the SDM, Sonamura and after hearing the parties passed an order on 24.05.2014 dismissing the said case and declined to correct the records as prayed for.

CRP. No. 44 of 2016 Page 6 of 15 [10] The grounds for rejection as would be available from the order dated 24.05.2014 may be extracted for purpose of reference:

"Perused the records and solenama. As the 1st party did not accept solenama, it has not executed any registered deed in favour of 2nd party. And without any registered deed, the transfer of land is not held to be valid and records cannot be corrected without any registered instrument.

For getting the records corrected in its favour the 1st party has to get the registered deed in its favour from 2nd party and to approach the SDM, Sonamura for mutation."

[11] This Court has also perused the inquiry report dated 12.12.2014 sent to the District Magistrate & Collector by the SDM, Sonamura (Annexure-9 to the writ petition). The SDM, Sonamura has opined that that the requirement of Section 46(1) of the TLR & LR Act, 1960 could not be satisfied by the respondent No. 2. Therefore, there may not be any order to exercise the power under Section 95 of the TLR & LR Act, 1960. This is the reason why another appeal was filed to the Secretary, Revenue Department, Government of Tripura, under Section 93(1)(c) of the TLR & LR Act, 1960 against the said order dated 24.05.2014 by the respondent No. 1, challenging the observations made in the said order.

[12] By the common order dated 22.08.2015, the Secretary to the Government of Tripura, Revenue Department, has held as under:

"After examination of all facts and circumstances and close scrutiny of all relevant records, this Court is of the considered opinion that the order dated 27.09.2014 passed by the DM & Collector, Sepahijala in Revenue Case No. 104 of 2013 under Section 93(1)(b) of the TLR & LR Act, 1960 in favour of Sri Haripada Das giving him ownership status of 0.09 acres land in RS Plot Nos. 3006, 3008 & 3009 through mutation process based on Solenama decreed in Civil Case No. T.S. 19 of 1991 is correct and is therefore, hereby upheld. Thus, the appeal of the Shri Kumudeswar Debnath and others (appellants in the instant case) stands dismissed. Further, the appeal filed by Sri Haripada Das in Revenue Case No. 27 of 2014 is allowed with CRP. No. 44 of 2016 Page 7 of 15 direction to set aside the order dated 24.05.2014 of the District Collector, Sepahijala in Revenue Case No. 38 of 2013."

[13] To challenge that common order dated 22.08.2015 as passed in Revenue Appeal No. 42/2nd Appl/Rev/Secy/2014 U/S-93 (2)(b) of the TLR & LR Act, 1960 this petition under Article 227 of the Constitution of India has been filed by the petitioners. Without any challenge to the deed of compromise (Annexure-3 to the writ petition), as fraudulent or unlawful the predecessor of the petitioners who was claiming title over the land as depicted in the solenama entered with the respondent No. 2, whereunder the respondent No. 2 got 0.09 acres and the plaintiff, the predecessor of the petitioners got 0.01 acre, out of the total land of 0.10 acres and the suit was decreed on compromise making the solenama as the part of the said decree.

[14] The sole contentions as this Court has gathered are two pronged viz (i) the petitioners are still on possession and since the possession has not been recovered having the compromise decree executed, now the decree itself has lapsed and (ii) the solenama having been an instrument which requires to be mandatorily registered has never been registered and as such, by directing the mutation of records under Section 46(1), the second appellate authority has committed a serious illegality and this Court for exercise of the jurisdiction which is not vested with the revenue authority, should interfere with the impugned order.

CRP. No. 44 of 2016 Page 8 of 15 [15] Mr. S. C. Das, learned counsel appearing for the petitioners has strenuously argued that Section 17(1)(e) mandates that the non- testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, or to in immovable property such instrument is mandatorily registrable and mutation under Section 46(1) of the TLR & LR Act, 1960 can be permitted only by virtue of such legally valid instrument, meaning the registered instrument. In this case, the non-testamentary instrument is to be governed by Section 17(1) (e) of the Registration Act, 1908. [16] Mr. Das, learned counsel appearing for the petitioners has stated that even there were no formal right on the property, the petitioners could raise legal objection.

[17] For this purpose Mr. Das, learned counse has referred a decision in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, reported in (2012) 1 SCC 656. That was a case in respect of the general power of attorney authorizing the attorney to cause transfer. A part of the para-1 of the said judgment is reproduced hereunder to show the nature of the controversy which was involved in the said case:

"Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of CRP. No. 44 of 2016 Page 9 of 15 transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted for money (black money) and to avoid payment of "unearned increases" due to development authorities, on transfer."

[18] According to this Court, the Apex Court judgment as has been referred does not carry any relevance for this case. In that judgment, the Apex Court has also held as under:

"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of the grantor, which when executed will be binding on the grantor as if done by him(see section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."

[19] Mr. Das, learned counsel appearing for the petitioners has also referred another decision of the Apex Court in S. Noordeen v. V.S.Thiru Venkita Reddiar and Others, reported in (1996) 3 SCC 289, where the Apex Court has observed as under:

"The question is whether such a decree is compulsorily registerable? This Court in Bhoop Singh v. Ram Singh Major [(1995) 5 SCC 709] has considered the question whether a compromise decree is compulsorily registerable. In that case, there was no pre-existing right to the properties between the parties, but a right was sought to be created for the first time under the compromise. The High Court had taken the view that it was not a compulsorily registerable instrument under Section 17 of the Act. This Court considered elaborately the circumstances in which clause (vi) of sub-Section (2) of Section 17 would come into play and stated in paragraph 18 thus:

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 CRP. No. 44 of 2016 Page 10 of 15 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.

[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."

10.It would be seen that if the decree were not to embody the terms of the compromise, as was the position in other cases, the benefit in terms of the compromise cannot be derived even if a suit were to be disposed of because of the compromise in question. If the property dealt with by the decree is not "subject-matter of the suit or proceeding", then 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.

11. Section 17(1) of the Act provides that the document shall be registered if the property in which they retate is an instrument or non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupee and upwards, to or in immovable property. Sub-section (2) gives exception. It says that:

Nothing in clauses (b) and (c) of sub-section (1) applies to-

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.

12. Here we are concerned with the question whether item 1 to 7 properties brought to sale in execution of decree in O.S. No.95/53 are a part of decree or order of the court, relating to the subject matter of the suit or proceeding. We have already held that items 1 to 7 of the properties mentioned in the separate application, which was the subject matter of the attachment before the judgment, have become part of the decree and also the order of the court in the proceedings under Order 38 Rule 6 of CPC. Therefore, the decree, though passed on compromise, formed part of the decree and order of the court in court proceedings. The immovable properties whose sale is impugned are not properties other than the subject matter of the suit or proceedings. Therefore, the view of the High Court is correct in law.

13. It is seen, as referred to by the learned single Judge, the Madras High Court and the Patna High Court had taken the same view in Rambas vs. Jagarnath Prasad [AIR 1960 Patna 179], M.P. Reddiar vs. A. Ammal [AIR 1971 Madras 182], Govindaswami vs. Rasu [AIR 1935 Madras 232] CRP. No. 44 of 2016 Page 11 of 15 and C.M. Pillai vs. H.S.S.S.S. Kadhiri Thaikal [AIR 1974 Madras 199]. Contra views were taken in Chhotibai Daulatram vs. Mansukhlal Jasrai [AIR 1941 Bombay 1] and Ganeshlal vs. Ramgopal [AIR 1955 Raj.17]. In Chhotibai's case (Bombay High Court), it was a case of simple money decree and the properties were not attached before judgment, but they were sold in execution of the decree on compromise. The sale was sought to be impugned on the ground that they were not registered. Therefore, they were held to be compulsorily registerable, by operation of Section 17(1) of the Act. Section 17(2)(vi) was not attracted. The learned Judge had proceeded with on the premise that this exception would apply to other proceedings under special laws but not to the civil proceedings. The view taken by the Bombay High Court is not correct in law. The Rajasthan High Court had merely followed the view of the Bombay High Court without any further reasons. Accordingly, we hold that the view of the Bombay High Court as well as that of the Rajasthan High Court are not correct in law."

[20] Mr. Das, learned counsel appearing for the petitioners has referred Bhoop Singh v. Ram Singh Major and Others, reported in (1995) 5 SCC 709. Since Bhoop Singh (supra) has been elaborately discussed in S. Noordeen, this Court will not refer exhaustively to the proposition of Bhoop Singh (supra) as the substance of the proposition are well reflected in S. Noordeen (supra).

[21] Mr. K. N. Bhattacharjee, learned senior counsel appearing for the respondent No. 2 has submitted that when a compromise decree based on a compromise agreement has been accepted by the Court, the parties to such agreement is prohibited under Order XXII Rule 3A of the CPC, they cannot challenge the decree. Moreover, it is an admitted position that the petitioners or their predecessors did never challenge the said compromise decree even they are not throwing any challenge in this petition also.

[22] Mr. Bhattacharjee, learned senior counsel appearing for the respondent No. 2 has also referred a decision of the Apex Court in CRP. No. 44 of 2016 Page 12 of 15 Girdhari Lal v. Hukam Singh and Others, reported in (1977) 3 SCC 347, where the Apex Court had occasion to observe as under:

"10. As regard the objection that the terms of the compromise operated as a transfer which required a registered deed for its enforcement, the High Court found that it was a sufficient answer to it that the terms were embodied in a compromise decree. The terms of the compromise decree did not provide for the execution of any deed of transfer. We were taken through the compromise decree by learned Counsel for the appellant. Even though the decree of a Court embodied an agreement between the parties, we do not think that the agreement between the parties, placed before us, involving the recognition of a transfer, could require registration unless the terms of the compromise decree necessarily involved the execution of a deed of conveyance also. We, therefore, reject this ground of objection also pressed before us vehemently for acceptance by learned Counsel for the appellant."

[23] We are really faced with the strange situation when in the compromise decree a clear statement has been made by the predecessors of the petitioners that even before the compromise deed was placed before the Court for acceptance, the respondent No. 2 was handed over the possession of the land measuring .09 acre and much later, a piece of land measuring .01 acre was handed over to the predecessor of the petitioners, to be precise on the day of execution of the compromise deed. [24] Moreover, in that suit, the dispute was relating to the said land measuring .10 acre and that was the subject matter. Whatever way the compromise deed has been framed, the Court found it legally tenable on scrutiny. Since the respondent No. 2 was in the possession and that has been acknowledged by the predecessor-in-interest of the petitioners, now they cannot take a stand contrary to what has been provided as the terms and conditions of the compromise deed. Mr. Bhattacharjee, learned senior counsel appearing for the respondent No. 2 is absolutely CRP. No. 44 of 2016 Page 13 of 15 right to hold that such act is barred under the provision Order XXIII Rule 3A of the CPC.

[25] That apart, the issue that has been raised in respect of the interplay of Section 17(2) and Section 17(1)(e) of the Registration Act, this Court is of the opinion that though Noordeen (supra) case has been referred by Mr. Das, learned counsel appearing for the petitioners but the said case squarely supports the impugned order passed by the Secretary to the Government of Tripura, Revenue Department, in the said common order which is now under challenge in this petition, as the property which was the subject matter of the suit, had become the part of the decree.

[26] In Bhoop Singh (supra) the circumstances in which the Clause-4 of sub-Section 2 of Section 7 will come into play has been quite substantially illustrated and has been quoted above. In S. Noordeen (supra), it has been unambiguously observed that as the property is the integral part of the decree, whether such decree is compulsorily registrable, is the question that had emerged for answer. [27] The Kerala High Court held that since the property was the part of the suit property it was not required to be registered. It has been further held that the decree is not liable to be annulled in any manner. [28] The said opinion of the Kerala High Court has been affirmed in Noordeen (supra). Thus, it can be held that the petitioners cannot be permitted to create any embargo in the right, title and interest CRP. No. 44 of 2016 Page 14 of 15 of the respondent No. 2 and this Court therefore does not find any infirmity in the impugned order dated 22.08.2015.

In the result, this petition stands dismissed. However, there shall be no order as to costs.

JUDGE A.Ghosh CRP. No. 44 of 2016 Page 15 of 15

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