Punjab-Haryana High Court
Brij Lal And Anr. vs Smt. Pari Devi And Ors. on 19 February, 2004
Equivalent citations: (2004)137PLR445
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The defendants are in second appeal aggrieved against the judgment decree passed by the Ist Appellate Court, whereby the judgment-decree dated 11,10.1993 passed in the suit titled as Brij Lal v. Sohan Lal was found to be null and void and not binding upon the rights of the plaintiff.
2. The plaintiff-respondents filed a suit for declaration alleging therein that Sohan Lal son of Mam Raj, husband of plaintiff No. I and father of plaintiffs No. 2 and 3 was owner in possession of the suit land measuring 7 marlas 3 sarsais. He died few weeks prior to the institution of this suit, leaving behind the plaintiffs, as his only legal representatives. The defendants have nothing to do with the suit land but claim right on the basis of frivolous civil suit No. 1754 of 20.8.1993 titled Brij Lal v. Sohan Lal, wherein they obtained a judgment-decree dated 11.10.1993 with respect to the suit land in their favour by practising fraud upon the Court. It was alleged that defendant Sohan Lal never resided at the address given in the suit. No notice was served upon deceased nor Sohan Lal appeared in the said suit. No written statement was filed nor he engaged Shri H.R. Saharan, Advocate. It was further stated that possession of the suit land was never delivered to the defendants by deceased Sohan Lal and that there was no question of family settlement between the defendants and deceased Sohan Lal.
3. The defendant-appellants contested the suit inter alia on the ground that the suit is not maintainable. It was stated that deceased was owner in possession of the suit land but by virtue of judgment and decree which is legal, valid and binding on the parties. The defendants are the owner of the suit land. The decree was based on the basis of admission made by Shri Sohan Lal in his written statement as well as in the statement made before the Court.
4. Issue No. 1 is the material issue which reads as under;-
"1. Whether the judgment and decree dated 11.10.1993 passed by Shri Raj Kumar, the then Senior Sub Judge, Sirsa in Civil Suit No. 1754 of 20.8.1993 titled as Brij Lal and Anr. v. Sohan Lal are null and void and not binding upon the rights of the plaintiffs as alleged? If so to what effect?...OPP"
5. The learned Trial Court dismissed the suit filed by the plaintiff-respondent, after it was found that Sohan Lal appeared in the previous suit and made statement, admitting the claim of the plaintiff. However, in appeal against the judgment and decree, the plaintiff has sought to challenge the decree passed in the previous suit on the ground that the question of family settlement as claimed by the defendants does not arise. The defendants have no pre-existing right in the property of Sohan Lal. The property could be transferred only vide a registered deed as required under Section 17(b) of the Registration Act, 1908. In the grounds of appeal, the plaintiff has claimed that there was no question of family settlement, but the learned Trial Court has not considered this aspect of the case.
6. The Ist Appellate Court relying upon the judgment of Supreme Court in Bhoop Singh v. Ram Singh Major and Ors., (1996-1)112 P.L.R. 559 held that since the defendants had no pre-existing right, therefore, right or interest in the suit land could not be created for the first time on the basis of judgments and decree dated 11.10.1993.
7. The learned 1st Appellate Court has recorded such finding in view of averments made in the previous suit (Exh.D2) wherein the defendants have pleaded family settlement, however, no evidence was adduced by the defendant as to what kind of settlement has taken place nor any evidence as to when family settlement has taken place. There is nothing on record as to what had fallen to the share of Sohan Lal in such family settlement.
8. Learned counsel for the appellant has raised two fold submission before this Court. Firstly, the plaintiff-respondent has not sought to avoid the judgments and decree passed in the previous suit for want of registration and thus the Ist Appellate Court has made out a new case for the plaintiff in appeal. Learned counsel for the appellant relied upon Parveen Kumar and Ors. v. State of Haryana, 1991 P.L.J. Page 95, as well as Prakash v. Financial Commissioner Revenue, Haryana and Ors., 1993 P.L.J. Page 18, wherein it has been held that a plea not raised in pleadings cannot be allowed to be raised at the time of arguments. Factual foundation of plea is required to be raised in the pleadings.
9. However, the said argument of learned counsel for the appellant cannot be accepted. The plaintiff has impugned the decree, inter alia, on the ground that there was no question of any settlement between the defendants and Sohan Lal deceased. A fact has been pleaded. The consequences thereof are required to be drawn by the Court. A specific plea was taken in grounds of appeal that the defendants have no pre-existing right in the property and thus land could not be transferred except by a registered deed. Such question has been examined by the Ist Appellate Court. The appellant has not disputed the right of the plaintiff to raise such arguments before the Ist Appellate Court. The Ist Appellate Court has examined such issue in appeal. Therefore, I am unable to agree with the learned counsel for the appellant that the plaintiff has not laid foundation in the pleadings. As a matter of fact, detail reference was made in the grounds of appeal and arguments addressed before the Ist Appellate Court. Therefore, it is not open to the appellant now to contend that plaintiff cannot be permitted to dispute the decree for want of registration.
10. The second argument of learned counsel for the appellant is that consent decree is binding between the parties and it does not require registration. Reference was made to Supreme Court of India judgment Bachan Singh v. Kartar Singh, (2002-2)131 P.L.R. 512; Karam Chand v. Chaman Lal, 1999(2) P.L.J. 306; Hari Singh v. Gurcharan Singh. (2002-3)132 P.L.R. 119; Jagdish v. Ram Karan and Ors., (2003-1)133 P.L.R. 182.
11. The argument raised by learned counsel for the appellant that the consent decree does not require registration is based on the provisions of Section 17(2)(vi) of the Registration Act 1908 which reads as under;-
"17. Documents of which registration is compulsory.- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1877(3 of 1877) or this Act came or comes into force namely-
a) instruments of gift of immovable property;
b) other non-testamentry 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 rupees and upwards, to or in immovable property;
(2) Nothing in Clause (b) and (c) of Sub-section (1) applies to-
(i) xxxxx
(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) to (v) xxxxxx
(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"
12. The Hon'ble Supreme Court in Bhoop Singh's (supra) while interpreting the above provision of the Registration Act observed that the court must enquire whether a document has recorded unqualified and unconditional words of present demise of right, title and interest in the property and included the essential terms of the same. If the document including a compromise memo, extinguishes the rights of one and seeks to confer right, title or interest in praesenti in favour of the other, the compromise shall be compulsory registerable. It was held to the following effect;
"(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 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 proceedings, 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."
However, in Bachan Singh's case (supra) referred by the learned counsel for the appellant, the consent decree was in favour of the plaintiff where the plaintiff has claimed perfection of title by virtue of adverse possession. It was admission of right of adverse possession by the defendant in favour of the plaintiff. Rights were not being created by virtue of decree itself. Therefore, the said judgment is clearly distinguishable.
13. In Karam Chand's case (supra), the parties have settled their dispute before the Ist Appellate Court. The said settlement was sought to be disputed in the Revision Petition alleging therein that the compromise is not in writing nor signed by the parties. The issue is altogether different. In Jagdish v. Ram Koran and Ors., (2003-1)133 P.L.R. 182; the decree was suffered by one Basti Ram who was unmarried. The decree was in favour of his real brother Ram Karan. It was held that since Basti Ram was a disabled person and he was living with Ram Karan and was being looked after by his family and therefore, the decree is legal and valid. It was held that such decree is on the basis of family settlement and does not require registration. The said judgment is again clearly distinguishable. Ram Karan is a member of family of Basti Ram as he was issueless. Ram Karan is one of the legal heirs of Basti Ram as well. He is a member of the family of Basti Ram. Thus it was held that it is family settlement.
14. In Hari Singh's case, the consent decree was sought to be disputed. The land in the hands of Inder Singh was his self acquired property. It was held that once the land is not shown to be inter state in the hands of Inder Singh that nobody else except Inder Singh could have right to make a grievance. Inder Singh himself could have challenged the decree. Since no such grievance was made, therefore, the grievance made by the plaintiff after the death of Inder Singh is not legally sustainable. The said judgment is clearly distinguishable.
15. In the present case, the impugned decree is dated 11.10.1993. The same has been challenged by way of a suit instituted on 13.10.1995 i.e., within a period of limitation of three years to challenge a document. Since the plaintiffs are the legal heirs of Sohan Lal they have a right to challenge the decree on the same grounds as were available to deceased Sohan Lal. Sohan Lal could have challenged the decree during his life time. After his death, his legal heirs could challenge the decree on the same ground within the period of limitation.
It is not disputed that property in the hands of Sohan Lat was his self acquired properly. No details of family settlement are available on record. There is no terms of settlement nor even the date, lime and place of the settlement is disclosed. The defendants are sons of sister of Sohan Lal. The plaintiff being widow, son and daughter are the preferential legal representatives. The defendants are not members of the family of Sohan Lal with whom Sohan Lal could enter into a family settlement. Thus, the rights in favour of the defendant were created for the first time by the decree dated 11.10.1993. Such decree was obtained so as to avoid registration of the decree on payment of stamp duty. Such action of the defendant is against the public policy. Therefore, on the principle laid down by the Hon'ble Supreme Court in Bhoop Singh case, the transfer of right, title and interest to the defendant was in praesenti i.e. by virtue of the decree dated 11.10.1993. Such decree for want of registration is of no effect. Such is the finding recorded by the Ist Appellate Court as well.
Consequently, I do not find any merit in the present appeal. The same is dismissed in limine.