Delhi District Court
Shri Ravinandan Goel vs Shri Raminder Kumar Goel (Deceased) on 25 July, 2017
IN THE COURT OF SH. ANIL KUMAR SISODIA:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/608336/2016
SHRI RAVINANDAN GOEL
S/o Late Tarachand
R/o 5/633, Mehrauli,
New Delhi. Plaintiff
Versus
1. SHRI RAMINDER KUMAR GOEL (DECEASED)
THROUGH HIS LEGAL HEIRS/REPRESENTATIVES:-
a) SMT. SANTOSH GOEL
W/o Late Raminder Kumar Goel
R/o J-14, Kailash Colony, New Delhi.
b)MS. BHARTI GOEL
W/o Shri Ajay Goel
D/o Late Raminder Kaur Goel
R/o 74-P, Sector-15, Part-1,
1st Floor, Gurgaon, Haryana
c) MS. POONAM GUPTA
W/o Shri Sanjay Gupta
D/o Late Raminder Kumar Goel
R/o AC-143, Shalimar Bagh, New Delhi.
d)REENA GARG
W/o Shri Bharat Bhushan Garg
D/o Late Raminder Kumar Goel
Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 1/23
R/o K-470, Jahangir Puri, Delhi.
e)MS. SHRUTI GOEL
W/o Shri Depak Goel
D/o Late Raminder Kumar Goel
R/o BT-8, Shalimar Bagh, New Delhi.
f) MS. ALKA
W/o Not known
D/o Late Raminder Kumar Goel
R/o J-14, Kailash Colony, New Delhi.
g) SH. RISHI GOEL
S/o Late Raminder Kumar Goel
R/o J-14, Kailash Colony, New Delhi.
2. SH. RISHI GOEL
S/o Late Raminder Kumar Goel
R/o J-14, Kailash Colony, New Delhi.
3. SH. SURINDER KUMAR GOEL
S/o Late Tara Chand
4. SH. VIRENDER KUMAR GOEL
S/o Late Tara Chand
Defendant nos. 3 & 4
R/o 3978, Ajmeri Gate, Delhi-110006. .....Defendants
Date of institution of suit:- 28.04.1998
Date of reserving for order:- 14.07.2017
Date of pronouncement:- 25.07.2017
Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 2/23
For the Plaintiff:- Sh. Yashvir Thakur, Advocate.
For the Defendant nos. 2 to 4:-Sh. Bharat Bhushan Gupta, Advocate
SUIT FOR PARTITION
JUDGMENT
1. Plaintiff has filed the present suit for partition of the plot measuring 1500 sq. yds. (1 bigha 10 biswas) forming part of Khasra No.349/290/152 of Village Yakutpur, Tehsil Mehrauli, New Delhi(hereinafter referred to as suit plot) against the defendants.
2. The facts of the case as stated in the plaint are that the plaintiff and defendants no.1,3 & 4 are the sons of late Sh. Tarachand Goel and defendant no.-2 is the son of defendant no.-1. Sh. Tarachand Goel was carrying on partnership business in the name and style of M/s Tarachand Goel & Sons alongwith plaintiff and defendant no.1, 3 & 4. The share of Sh. Tarachand Goel was 24% and the share of plaintiff, defendant no.1,3 and 4 were 19% each. The plaintiff, defendant no.1 and Sh. Tarachand Goel were in actual and exclusive possession of a plot of land measuring 5000 sq. yds. situated at Village Yakutpur, Tehsil Mehrauli, New Delhi and some litigation were pending with M/s DLF Universal Limited, M/s Chowdhary Lal Memorial Trust and Delhi Vocational Society. The said litigations went up to Hon'ble High Court and the matter was settled between the parties vide compromise dated 08.05.1995 and the plaintiff Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 3/23 alongwith other co-owners acquired title in the suit plot. As per the said compromise deed, the plaintiff, his father late Sh. Tarachand Goel and defendant no.-1 were admitted to be exclusive owners in possession of the suit plot. It was further stated that though the plaintiff was entitled to 1/3rd share of the suit plot but due to intervention of the elders of the family, it was mutually agreed that the plaintiff alongwith his own share as defendant no.-3 was also to get 1/5th share in addition, out of the share of Late Sh. Tarachand and the name of plaintiff was also reflected as defendant no.-3 in the Memo of Parties as one of the LRs of Late Sh. Tarachand Goel alongwith defendant no. 1 to 4. Thus, the plaintiff has got an undivided share of 600 sq. yds (500+100), defendant no. 1 and his son (defendant no.-2) got an undivided share to the extent of 700 sq. yds. (500+100+100) and defendant no.3 and 4 got an undivided share in the suit plot to the extent of 100 sq. yds each. The shares allotted to defendant no. 2, 3 and 4 were merely out of love and affection although they were not party to the litigation before the Hon'ble High Court. The plaintiff had been requesting the defendants to partition the suit plot by metes and bounds but defendants are colluding with each other and have failed to agree for partition of the suit plot by metes and bounds. Finding no other alternative, plaintiff has filed the present suit against the defendants.
3. The defendants have contested the suit by filing joint written statement and raised preliminary objections that the suit is not maintainable and the plaintiff has no existing right, title or interest in the suit plot. The plaintiff is guilty of suppression of material facts and has Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 4/23 not come to the court with clean hands. The suit plot was self acquired property of Sh.Tarachand Goel and he had executed a Will on 13.04.1980 whereby the suit plot has been bequeathed in favour of the defendants and plaintiff has been totally excluded from any share in the suit plot. The suit plot has not been properly valued for the purposes of court fees and jurisdiction. The plaintiff is not in possession of the any portion of the suit plot and hence he is liable to pay ad-valorem court fees. The plaintiff is claiming his right in the suit plot on the basis of judgment and decree dated 08.05.1995 but the said judgment has neither been engrossed on requisite stamp papers nor was registered with the Sub-Registrar of Assurances as required under Law and the period of 12 years have already expired and the compromise decree is not executable and enforceable.
On merits, the contents of the plaint have been denied except the relations between the parties and the fact that the parties to the suit were in partnership business with their father Sh.Tarachand Goel. Defendants have also admitted the pendency of judicial proceedings in respect to the suit plot and death of their father on 20.12.1981. It was however denied that the suit plot was in joint possession of the parties in suit and it has been stated that the suit plot was self acquired property of Sh. Tarachand Goel and the defendants have inherited the same by virtue of Will dated 13.04.1980. It was also submitted that the judgment and compromise decree dated 08.05.1995 has lost its enforceability and executability after the expiry of 12 years on 08.05.2007 as the decree is unregistered and has not been engrossed on requisite stamp papers. The plaintiff has no right, title or interest in the partnership firm or the estate of his father Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 5/23 including the suit plot. It was also stated that he partnership firm was duly dissolved by deed of dissolution dated 27.05.1975 and the accounts were settled and thereafter the plaintiff was not left with any share and interest in the partnership firm M/s Tarachand Goel and Sons w.e.f 1975. The suit filed by the plaintiff for rendition of the accounts in respect of the partnership firm was dismissed on 22.07.1987 by the Hon'ble High Court. It was also stated that he plaintiff was merely a party in the litigation before the Hon'ble High Court but had no right, title or interest of the suit plot. All other contents of the plaint were denied and the prayer was made for dismissal of the suit.
4. Plaintiff has filed replication to the written statement of the defendants denying all the allegations contrary to the plaint and has reiterated the contents of the plaint. The plaintiff submitted that the Will of Sh. Tarachand Goel dated 13.04.1980 has no effect on the right of the plaintiff and the co-owners have ignored the said Will by their subsequent conduct. It was also submitted that the suit plot was never a property of the defendants or the firm. It was denied that Sh.Tarachand Goel was owner of the land measuring 5000 sq. yds since 1950 or that the factual possession was decided by Tehsildar Mehruli on 03.09.1969.
5. After completion of pleadings, the following issues were framed vide order dated 10.05.2006:-
(1) Whether the plaintiff has got undivided share of 600 sq. yd.
(500+100), the defendant no. 1 and his son defendant no. 2 got undivided share of 700 sq. yd. (500+100+100) and defendant no. 3 and 4 got undivided share of 100 sq. yd in suit property measuring 1500 sq. Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 6/23 yd. forming part of khasra no. 349/290/152, Village Yakut Pur in the revenue state of Tehsil Mehrauli, New Delhi?OPP.
(2)Whether the plaintiff is also in possession of suit property along with defendants?OPD (3)Whether the suit is without cause of action?OPD.
(4)Whether plot of land measuring 1500 sq. yd. forming part of the khasra was self acquired property of Sh. Tara Chand Goel?OPD.
(5)Whether Sh. Tara Chand had executed Will dated 13.04.1980 in favour of defendants?OPD (6)Whether the suit has been improperly valued for the purpose of jurisdiction as well as court fee?OPD.
(7)Relief.
The issue no. 2 was reframed vide order dated 21.09.2006 as under:- "(2) Whether the plaintiff is in possession of the suit property along with the defendants? OPP.
After the amendment of the pleadings, vide order dated 28.05.2010 an additional issue was framed as under:-
"Whether the judgment/decree dated 08.05.1995 as lost its legal enforceability and execution thereof?OPD"
6. In support of his case, plaintiff has examined himself as PW-1 and has tendered his evidence by way of affidavit Ex.PW-1/X. He has reiterated the facts as stated in the plaint in his affidavit. He has also relied upon the following documents in support of his case:-
1. Certified copies of RSA no. 2/82 as Ex. PW1/A;Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 7/23
2. Certified copies of RSA no. 3/82 as Ex. PW1/B;
3. Certified copy of joint application with supporting affidavit and order as Ex. PW1/C;
4. Site plan as Ex. PW1/D;
5. Judgment in RCA no. 192/79 as Ex. PW1/E;
6. Judgment and decree in RCA no. 191/79 as Ex. PW1/F. Plaintiff also examined PW2 Sh. Ashok Kumar, LDC record room who proved the order and decree dated 08.05.1995 as Ex. PW1/A and certified copy of the order and decree dated 08.05.1995 in RSA no.
3/82 as Ex. PW1/B and joint application for compromise and settlement with supporting affidavit as Ex. PW1/C. Thereafter, PE was closed.
7. Defendants in support of their case have examined DW-1 Sh. Raminder Goel (defendant no.-1) who tendered his evidence by way of affidavit Ex.DW-1/1 and reiterated the averments made in the written statement in his evidence and he also exhibited copy of dissolution deed of the partnership dated 27.05.1975 as Ex. DW1/X; Copy of order of Tehsildar as Ex. DW1/Y; Copies of decision in RSA no. 2 and 3 of 1982 and the compromise as Ex. DW1/C and Ex. DW1/D; copy of compromise decree dated 08.05.1995 as Ex. DW1/E; Copy of Will dated 13.04.1980 as Ex.DW-1/Z; copy of judgment dated 22.05.1987 as Ex. DW1/G and Copy of Order dated 21.05.1985 as Ex.DW-1/G1.
Defendants also filed evidence by way of affidavits of defendants no.2 to 4 namely Sh. Rishi Kumar Goel, Sh. Surender Kumar Goel, and Sh. Virender Kumar Goel but the evidence of the defendants was closed vide order dated 11.08.2014 on the ground that the affidavits of these Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 8/23 three witnesses were similar to the affidavit of DW-1 Sh. Raminder Goel.
8. During the pendency of the suit, defendant no.-1 Sh. Raminder Goel expired and his legal heirs were impleaded vide order dated 21.10.2006. The LRs of defendant no.-1 (except LR no.-1(g) who is also defendant no.-2) did not contest the suit and were proceeded ex-parte.
9. I have heard arguments on behalf of the Counsels for the plaintiff and defendant nos.2 to 4 and I have perused the record carefully.
10. My findings on the issues are as under:-
ISSUE NO. (4):-
Whether plot of land measuring 1500 sq. yd. forming part of the khasra was self acquired property of Sh. Tara Chand Goel? OPD.
The onus of proving this issue was on the defendants. Defendants in their written statement have taken a stand that the plot of land measuring 1500 sq. yd. forming part of the Khasra No.349/290/152 (suit plot)was self acquired property of Sh. Tara Chand Goel but no document showing the title of the suit plot in favour of Sh. Tara Chand Goel was filed alongwith the written statement.
DW-1 Sh. Raminder Kumar Goel in his affidavit DW-1/1 also testified that the suit plot was self acquired property of Sh. Tarachand Goel and he had bequeathed the same in favour of the defendants by Will Ex.DW-1/Z. However, in his cross-examination, the witness admitted that there was no registered sale deed or any other registered document Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 9/23 of ownership of the suit plot in the name of Sh. Tarachand Goel. He also admitted that the Order of the Tehsildar dated 03.09.1969 Ex.DW-1/Y also did not declare Sh. Tarachand Goel as owner of the suit property.
A bare perusal of the order of the Tehsildar Ex.DW-1/Y shows that applicant Sh. Tarachand Goel was in possession of about 5000 sq. yds of land for the last 15 years. This order did not create any right, title or interest in favour of Late Sh.Tarachand Goel. In the absence of any sale deed or any other registered document of title, it cannot be said that the suit property was self acquired property of Sh.Tarachand Goel. The defendants have failed to discharge the onus cast on them. The issue is accordingly decided in favour of the plaintiff and against the defendants.
11. ISSUE NO. (5):-
Whether Sh. Tara Chand had executed Will dated 13.04.1980 in favour of defendants?OPD The onus of proving this issue was on the defendants. Defendants in their written statement have pleaded that late Sh. Tarachand Goel executed a registered Will dated 13.04.1980 in their favour and excluded the plaintiff from all his properties including the suit plot. The plaintiff has denied the said Will. DW-1 Sh. Raminder Kumar Goel in his affidavit has testified that Sh. Tarachand Goel had executed the Will dated 13.04.1980 and the plaintiff was totally excluded from getting any share in the suit plot. The certified copy of the Will has been placed on record as Ex.DW-1/Z. Although, DW-1 has testified that the Will was proved in suit no.551 of 1975 but the defendants have not examined any of the attesting witnesses of the Will to prove it.Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 10/23
12. It has been argued on behalf of the defendants that the defendants have placed on record the certified copy of the Will as Ex.DW-1/Z and the certified copy of the order dated 21.05.1985 Ex.DW-1/G1 passed in suit no.551/1975 in the case titled as "Ravi Nandan Goel Vs. Tarachand Goel & Ors." where the said will was proved by the defendants and the same was held to be genuine.
I have perused the order of the Hon'ble High Court dated 21.05.1985 Ex.DW-1/G1 and perusal of the same reveals that the Will was proved in an inquiry under Order 22 Rule 5 CPC on the question of the LRs of the deceased late Sh. Tarachand Goel. It is well settled that the object of the substitution of heir after the death of a party in the suit is only for the purpose of bringing the legal representative for continuing and conducting the legal proceedings. It does not decide inter-se dispute between the claimant nor does it operate as resjudicata in a subsequent disputes between the several claimants. In Mohinder Vs. Piara AIR 1981 P&H 130(FB), it was held that a decision determining a person as legal representative is not resjudicata.
The Will Ex.DW-1/Z was not fact-in-issue in the suit no.551/1975 which was a suit for dissolution of partnership firm and rendition of accounts. Therefore, I am of the considered opinion that the findings given by the Hon'ble High Court in an inquiry under Order 22 Rule 5 of CPC is of no help to the defendants in the present suit. The defendants have set up the Will Ex./DW-1/Z to resist the claim of the plaintiff in this suit. The plaintiff has denied the Will Ex.DW-1/Z. Hence, the defendants were required to prove the same in accordance with Section 63 of the Indian Succession Act. In the absence of examination Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 11/23 of any attesting witness to prove the due execution of the Will, the defendants have failed to discharge the onus cast on them. Accordingly, the issue is decided against the defendants and in favour of the plaintiff.
13. ISSUE NO.-(2):-
Whether the plaintiff is in possession of the suit property along with the defendants? OPP.
The onus of proving this issue was on the plaintiff. Counsel for the plaintiff has submitted that the plaintiff is in continuous possession of the suit plot alongwith his father and defendant no.-1. It has been argued that the factum of possession of the plaintiff has been admitted by all the parties in Clause(II) para 8 of the joint compromise application Ex.PW- 1/C filed before the Hon'ble High Court in RSA no.2 of 1982 and 3 of 1982. It has been argued that the defendants have not led any evidence to show that the plaintiff was dispossessed thereafter or the plaintiff had surrendered his possession. Hence, the plaintiff is in continuous possession of the suit plot.
Counsel for the defendants has disputed the claim of the plaintiff that he was in possession of the suit plot and he has submitted that PW-1 in his cross-examination, has not been able to show any documents with regard to his possession over the suit plot. It was argued that the plaintiff could not tell the exact boundaries of the suit plot and could not show any record on the suit file to show that he was in possession of the portion X-4 to X-7 in the site plan Ex.PW-1/D. In rebuttal, Counsel for the plaintiff has argued that in the compromise decree Ex.PW-1/C, it was clearly admitted that the plaintiff Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 12/23 and the defendants were in joint possession of the suit plot and defendants in their written statement have not taken a stand that the plaintiff was ousted from the suit property at any point of time. Hence, now the defendants cannot take a plea that the plaintiff is not in possession of the suit plot.
14. From the perusal of the documents Ex.PW-1/A to Ex.PW-1/C, it is clear that the plaintiff was admitted to be in possession of the suit plot alongwith other defendants. Clause (II) of para 8 of the joint compromise application Ex.PW-1/C clearly acknowledges the fact that the plaintiff and defendants herein were in actual physical possession of the suit plot. Thereafter, nothing has been proved on record by the defendants to show that the plaintiff was ousted from the suit plot at any point of time or that he had himself surrendered the possession of the suit plot to the defendants. Hence, in the absence of any evidence to contrary, it cannot be said that the plaintiff is not in possession of the suit plot.
In view of the aforesaid discussion, the issue is decided in favour of the plaintiff and against the defendants.
15. ISSUE NO.(6):-
Whether the suit has been improperly valued for the purpose of jurisdiction as well as court fee?OPD.
The onus of proving this issue was upon the defendants. Counsel for the defendants has submitted that the plaintiff has not properly valued the suit for the purpose of court fees and jurisdiction. It was submitted that the value of the suit plot was not less than Rs.1 Crore on the date of Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 13/23 institution of the suit. The plaintiff has valued the suit for the purpose of jurisdiction at Rs.10 lacs. It was argued that the plaintiff has not been able to show as to how he has arrived at this value. It was submitted that in the cross-examination of PW-1 dated 11.02.2011, the witness has testified that he had no idea about the rates of the property in the surroundings areas. He also had no knowledge about the circle rate of the suit plot at the time of filing of the suit and he had neither approached any dealer/valuer to assess the value of the suit plot at the time of filing of the suit nor he had inquired from the neighbours about the value of the suit plot. PW-1 has testified that he had discussed about the rate of the suit plot at the time of filing of the suit with one Numbardar Late Sh. Mangtu who was living in the nearby village but PW-1 could not recall the exact rate told by him. The witness also could not recall how he had assessed the value of the suit plot at the time of filing of the suit. PW-1 in his further cross-examination dated 23.07.2011 has testified that at the time of filing of the present suit, the value of the suit plot was around Rs.2-3 lacs. It was argued that the plaintiff has arbitrarily fixed the value of the suit plot and he has not examined any valuer or any other person for proving that the suit has been properly valued for the purposes of Court fees and jurisdiction. It was further argued the plaintiff is liable to pay ad-valorem court fees on the relief of partition as he is not in possession of the suit plot.
Counsel for the plaintiff on the other hand has argued that the plaintiff has valued the suit appropriately and fixed court fees has been paid as the plaintiff is in possession of the suit plot. It was argued that the defendants have not led any evidence to show that the value of the suit Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 14/23 plot was Rs. 1 Crore or more at the time of filing of the present suit and merely giving suggestion in the cross-examination is of no help to the defendants.
16. From the perusal of the testimony of the PW-1 it is evident that the testimony of PW-1 on the aspect of value of the suit plot at the time of filing of the suit is not consistent and in fact is full of contradictions. On the one hand, the plaintiff states that he does not know the value of the suit plot at the time of filing of the suit on the other hand he testified that the value of the suit plot was Rs.2-3 lacs whereas in the plaint, the suit has been valued for the purpose of jurisdiction at Rs.10 lacs. The plaintiff also failed to give any basis on which he had valued the suit plot for the purpose of jurisdiction.
In view of my findings on issue no.(2) hereinabove, I am of the considered opinion that since the plaintiff has been held to be in possession of the suit plot, he is required to pay only fixed court fees and not ad-valorem court fees. However, as far as the value of suit for the purpose of jurisdiction is concerned, the objection raised by the defendants has lost its relevance as the pecuniary jurisdiction of this court has been enhanced to Rs.2 Crore and even if for the sake of arguments, it is assumed that the value of the suit plot was Rs.1 Crore on the date of filing of the suit, it will have no effect on the jurisdiction of this Court. Hence, the issue is decided in favour of the plaintiff and against the defendants.
Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 15/2317. ADDITIONAL ISSUE FRAMED ON 28.05.2010:-
"Whether the judgment/decree dated 08.05.1995 as lost its legal enforceability and execution thereof?OPD"
Ld. Counsel for the defendants has argued that the plaintiff is claiming his right on the basis of the compromise judgment/decree dated 08.05.1995 Ex.PW-1/C. It was argued that Late Sh. Tarachand Goel, the plaintiff and defendant no.-1 had filed suit for injunction in respect of 5000 sq. yds. of land in village Jamrudpur, New Delhi bearing suit no.639/72 against the Delhi Vocational School Society for protecting their possession. Delhi Vocational Society had also filed a suit for permanent and mandatory injunction against Sh. Tarachand Goel, Ravinanadan Goel, Raminder Goel and M/s Tarachand Goel and Sons bearing suit no.631/1972. Both the suits were dismissed by common judgment dated 02.09.1978 by the Ld. Civil Judge. Aggrieved by the said judgments, two appeals were preferred by M/s Tarachand Goel etc. against Delhi Vocational School Society bearing RCA no.191 of 1979 and RCA no.192 of 1979 and vide common judgment/decree dated 14.08.1981, the appeal in RCA no.191/1979 was accepted and the Trial Court judgment/decree was set aside and the first suit no.639/72 was decreed in favour of the plaintiffs therein. Aggrieved by the judgment of first appellate Court, the parties filed RSA no.2 of 1982 and RSA no.3 of 1982 before the Hon'ble High Court. The matter was settled between the parties and a joint application for compromise was filed and Hon'ble High Court vide Order dated 08.05.1995 passed a compromise decree Ex.PW-1/C. It was further argued that by virtue of the said compromise decree the rights of the parties were settled and judgment of the first Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 16/23 appellate Court and trial Court merged into the compromise decree. Counsel for the defendants has argued that the said compromise decree required compulsory registration under Section 17(2) (vi) of the Indian Registration Act. The said compromise decree was not got registered by the plaintiffs nor it was engrossed on requisite stamp papers within the prescribed period of limitation of 12 years and hence, the said compromise decree became unenforceable. Counsel for the defendants has placed reliance on the judgments of Hon'ble Supreme Court in Bhoop Singh Vs. Ram Singh Major AIR 1996 SC 196; Phoolpatti & Anr. Vs. Ram Singh & Anr. I (2015) SLT 408 and K Raghunandan Vs. Ali Hussain Sabir & Ors. AIR 2008 SC 2337 in support of his arguments.
18. Per contra, Counsel for the plaintiff has argued that the compromise decree dated 08.05.1995 does not require compulsory registration and the same is legally valid and executable document. Counsel for the plaintiff has relied upon the judgment of Hon'ble Supreme Court in Bachan Singh Vs. Kartar Singh & Ors. 2002(3) RCR (Civil) 495 (SC).
19. I have carefully gone through the judgments relied upon by the counsels for the parties. Hon'ble Supreme Court in para 18 of Bhoop Singh's judgment(Supra) summarized the legal position qua Clause
(vi) of Section 17(2) of the Registration Act as under:-
"1. Compromise decree if bona fide, in the sense that the compromise is not a device to Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 17/23 obviate payment of stamp duty and frustrate the law relating to the 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 parties 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, it is apparent that the decree would not require registration.
4. If the decree were not to embody the terms of compromise, benefit from the terms of the compromise cannot be derived, even if a suit were to be disposed off 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."
20. Hon'ble Supreme Court in para 19 of this judgment further held that a suit decreed in view of the written statement filed by defendant admitting the claim of the plaintiff to be correct is not a compromise decree and it is judgment on admission and the same is covered under Order 12 Rule 6 CPC and not by Order 23 Rule 3 CPC.
21. In K Raghunandan's case(Supra), it was held that:-
"It would 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 Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 18/23 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 the favour of the other party for the first time, either by compromise or pretended consent. If a latter be the position, the documents is compulsorily registrable."
22. In Phoolpatti's case(Supra) Hon'ble Supreme Court held that the gift of self acquired property of land required registration as it created for the first time right, title or interest in the immovable property of the value greater than Rs.100/- in favour of nephew of the owner.
23. In Bachan Singh' case(Supra), Hon'ble Supreme Court held that a consent decree passed by the Court declaring a party owner of the land does not require compulsory registration. However, the facts of this case are distinguishable from the facts of the present case. In Bachan Singh's Case the defendant had admitted the claim of the plaintiff in an earlier suit and the said suit was decreed by the Ld. Trial Court on the basis of the said admission and no appeal was preferred by any of parties against the judgment of the Ld. Trial Court. In the second suit, the defendants tried to challenge the judgment in the first suit on the ground that it was obtained by fraud but the Hon'ble Court dismissed the said appeal on the ground that earlier suit was based on consent decree on the basis of admission in the written statement which did not require any registration.
24. In the present case, neither Sh.Tarachand Goel nor the plaintiff and Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 19/23 defendant no.-1 herein had any pre-existing right, title or interest in the suit plot prior to the compromise decree Ex.PW-1/C. Thus, the compromise decree Ex.PW-1/C, for the first time, created right, title or interest in favour of the plaintiff and defendants in immovable property of the value more than Rs.100/-. Hence, the said decree required compulsory registration under Section 17 (2)(vi) of the Registration Act. The said decree Ex.PW-1/C was not got registered and the time period for getting the same registered expired on 08.05.2007. The compromise decree Ex.PW-1/C has thus become unenforceable and unexecutable and the plaintiff cannot enforce his rights arising out of the said compromise decree Ex.PW-1/C. The issue is accordingly decided against the plaintiff and in favour of the defendants.
25. ISSUES NO. (1) & (3):-
(1) Whether the plaintiff has got undivided share of 600 sq. yd.
(500+100), the defendant no. 1 and his son defendant no. 2 got undivided share of 700 sq. yd. (500+100+100) and defendant no. 3 and 4 got undivided share of 100 sq. yd in suit property measuring 1500 sq. yd. forming part of khasra no. 349/290/152, Village Yakut Pur in the revenue state of Tehsil Mehrauli, New Delhi?OPP.
(3)Whether the suit is without cause of action?OPD These issues are taken up together as they can be decided by common discussion. The onus of proving issues no.(1) was on the plaintiff and the onus of proving issue no.(3) was on defendant.
Counsel for the plaintiff has argued that by virtue of compromise decree Ex.PW-1/C, the plaintiff is entitled for 600 sq. yds, defendants no. 1 & 2 are entitled to 700 sq. yds. and defendants no.3 & 4 are entitled to Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 20/23 100 sq. yds. each out of the suit land measuring 1500 sq. yds. forming part of Khasra no.349/290/152 village Yakutpur in the revenue estate of Tehsil Mehrauli. It was argued that the defendants have never challenged the said compromise decree in any court of law and it has attained finality. It was also argued that the Will Ex.DW-1/Z set up by the defendants is of no value as the compromise decree was passed on 08.05.1995 whereas the Will was executed on 13.04.1980 when Sh. Tarachand Goel had no right, title or interest in the suit plot and Sh.Tarachand Goel had already expired before the settlement. Hence, Will dated 13.04.1980 will not affect the right of the parties qua the suit plot.
26. Counsel for the defendants on the other hand has argued that the plaintiff is not entitled to any share in the suit plot as he has no right, title or interest in the suit plot and he cannot claim on the basis of unregistered compromise decree Ex.PW-1/C. The entire claim of the plaintiff is based on the compromise decree which is unenforceable and the same cannot be executed and therefore the suit of the plaintiff is without any cause of action. He further argued that the plaintiff was debarred by the Will Ex.DW-1/Z from any claim in the properties of Late Sh. T.C. Goel including the suit plot. It was further argued that all the legal heirs of Late Sh. T.C. Goel were not made party to the suit and the suit is also liable to be dismissed for the non-joinder of the necessary parties.
27. In rebuttal, Counsel for the plaintiff has argued that the suit Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 21/23 no.639/72 was filed by Sh. T.C. Goel, the plaintiff and defendant no.-1 in their individual capacity and not as partner of the firm. It was also argued that the suit plot was not the self acquired property of late Sh. T.C. Goel and hence other Legal heirs had no right, title or interest in the same and even in the appeals pending before the Hon'ble High Court, other Legal Heirs were not impleaded and only the those mentioned in the Will Ex.DW-1/Z were impleaded and there was no objection from the side of either the defendants or the remaining legal heirs. Even in the present suit, the defendants have not taken the objections of the suit is not maintainable in the absence of other legal heirs.
28. In view of my findings on additional issue framed on 28.05.2010, I am of the considered opinion that the entire claim of the plaintiff is based on the compromise decree Ex.PW-1/C which for the first time created right, title and interest in the suit plot in favour of the plaintiff and defendants. The said compromise decree required compulsory registration under Section 17 (2)(vi) of Registration Act but the same was not got registered. The time for registration of the compromise decree has also expired. Hence, the compromise decree Ex.PW-1/C has become unenforceable and unexecutable and the plaintiff cannot approach the court for enforcement of his rights which have arisen out of the compromise decree Ex.PW-1/C.
29. Therefore, in view of the aforesaid discussion, issues no.(1), (3) are decided against the plaintiff and in favour of the defendants.
Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 22/2330. ISSUE NO.(7):- RELIEF.
In view of my findings on the aforesaid issues, the suit of the plaintiff is dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court (ANIL KUMAR SISODIA)
Dated: 25th July 2017 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
Ravinandan Goel VS Raminder Kumar Goel & Ors. Page No. 23/23