Madhya Pradesh High Court
Mohammade Yusuf vs Rajkumar on 13 February, 2017
1
HIGH COURT OF MADHYA PRADESH: BENCH: INDORE
(SINGE BENCH: HON.MR.JUSTICE PRAKASH
SHRIVASTAVA
WRIT PETITION NO.2170/2015
Mohammade Yusuf s/o Habib Khan Mevati
& others ... Petitioners
Vs.
Rajkumar S/o Vithalbhai Bandhwar
& others ... Respondents
For petitioners: Shri Vinay Gandhi, learned counsel.
For respondents: Shri Satish Jain, learned counsel for
respondent No.4 to 7.
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Whether approved for reporting:-
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ORDER
(Passed on 13th February, 2017) This writ petition under Article 227 of the Constitution is at the instance of the defendants challenging the order of the trial court dated 7/1/2015 whereby the trial court has held that the compromise decree is not admissible in evidence for want of registration.
[2] In brief, in the suit filed by the respondents plaintiffs, at the stage of examination of the defendants witness Mohd. Hafiz, the petitioner wanted to exhibit compromise decree passed in CS No.250-A/1984 dated 4/10/1985 in the matter of Habib Khan 2 Vs. Pradyumn and the objection was raised by the respondent plaintiffs that the decree is required to be registered u/S.17 of the Registration Act and since it was not registered, therefore, not admissible in evidence. Trial court has allowed the objection by the impugned order.
[3] Learned counsel for petitioners submits that Sec.17(1)(e) of the Registration Act is attracted when any right accrued under the decree is transferred or assigned whereas in the present case, the petitioner is claiming the right under the decree without there being any assignment or transfer. He further submits that even Sec.17(1) (b) & (c) are not attracted in view of Sec.17(2)
(vi) because the compromise decree was confined to the subject matter of the suit. He further submits that the right was created in favour of the petitioner in view of Sec.27 of the Limitation Act as soon as the limitation for filing the suit by the original owner had expired and by the compromise decree only the pre-existing right was declared and that the petitioner may be permitted to exhibit the decree only for the collateral purpose. [4] As against this, learned counsel for respondents submits that by the compromise decree for the first time the right had accrued in favour of the petitioner and that prior to the compromise decree the petitioner was merely an encroacher. [5] I have heard the learned counsel for parties and perused 3 the record.
[6] By the alleged compromise decree dated 4/10/1985 passed in CS No.250-A/1984 the suit filed by Habibkhan (petitioner's father) for declaration and permanent injunction based upon the plea of adverse possession was decreed. [7] Section 17 of the Act provides for the document registration of which is compulsory. Sec.17(1) (b), (c) & (e) as also Sec.17(2)(vi) which are relevant for the present purpose are reproduced hereunder:-
"17(1)(b) other 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 rupees and upwards, to or in immovable property;
[c] non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and [e] 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, to or in immovable property.
[2] 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]; or 4 [8] A co-joint reading of Section 17(1)(b) and 17(2)(vi) reveals that when by a compromise decree any right or interest in the immovable property of value more than Rs.100/- is created for the first time, then registration of such a decree is necessary, but when a bona-fide compromise decree merely declares the pre-
existing right in such an immovable property which was subject matter of suit or proceedings, then it does not require registration.
[9] The aforesaid provisions in the context of the compromise decree were considered by the supreme court in the matter of Bhoop Singh Vs. Ram Singh Major and others reported in (1995) 5 SCC 709 and the position of law qua Sec.17(2)(vi) was summarised as follows:-
"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 5 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] Subsequently in the matter of K.Raghunandan & Ors Vs. Ali Hussain Sabir & Ors. reported in AIR 2008 SC 2337 in a case where after the compromise decree the plaintiff had claimed title to the suit passage on the basis of the compromise decree wherein the suit passage was not subject matter in the earlier suit, the supreme court has held that the compromise decree need to be registered. The matter was referred to the larger bench by order passed in the matter of Phool Patti and another Vs. Ram Singh (dead) through LR.s and another reported in (2009) 13 SCC 22 on expressing opinion that there was inconsistency between the decisions in the cases of Bhoop Singh and Raghunandan (supra). The larger bench of the supreme court by the judgment in the matter of Phool Patti and another Vs. Ram Singh (dead) through LR.s and another 6 reported in (2015) 3 SCC 465 has held that there was no inconsistency between the judgment in the case of Bhoop Singh and Raghunandan (supra). After the larger bench judgment, the matter was again taken up by the division bench of supreme Court in the matter of Phool Patti and another Vs. Ram Singh (dead) through LR.s and another reported in (2015) 3 SCC 164 and the the two judges bench held that the property in respect of which the consent decree declared pre-existing right of the plaintiff, did not require compulsory registration whereas the decree passed in respect of other property required registration since for the first time the right title or interest of value greater than Rs.100/- was created for other property in favour of the said plaintiff.
[11] In the present case, in the earlier suit CS No.250-A/1984 the petitioner had claimed declaration of title on the plea of adverse possession and the compromise decree was passed in the suit. The very fact that the suit was based upon the plea of adverse possession reflects that the petitioner had no pre- existing title in the suit property. Till the suit was decreed, the petitioner was a mere encroacher, at the most denying the title of lawful owner.
[12] The supreme Court in the matter of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala reported in 2014(3) MPLJ 36 7 has settled that declaratory decree based on plea of adverse possession cannot be claimed and adverse possession can be used only as shield in defence by the defendant. It has been held that:-
"7] In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the Courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
[13] The plea of the petitioner based upon Sec.27 of the Limitation Act is found to be devoid of any merit since it relates to the extinction of the right of the lawful owner after expiry of the Limitation Act, but in view of the judgment of the supreme court in the matter of Gurudwara Sahib (supra), the petitioner cannot claim himself to be the owner automatically after the expiry of the said limitation.
[14] Even otherwise as settled by the supreme court in the matter of Sneh Gupta Vs. Devi Swaroop reported in 2010 (1) MPLJ 70, a compromise decree is merely an agreement between the parties with the seal of the court super-added to it and that the title to the property must be determined in terms of the statutory provision and relinquishment of right in property by 8 the party must be done by a registered instrument. [15] Counsel for petitioner has also placed reliance upon the judgment of the supreme court in the matter of Som Dev & Ors Vs. Rati Ram & Anr. reported in AIR 2006 SC 3297, but in that case it was found that by the decree, the right was not created for the first time, hence Sec.17(1)(a) was held to be not applicable.
[16] Keeping in view the aforesaid position in law, the benefit of judgments in the matter of Gulkandi Vs. Dhikkal and others reported in AIR 2016 Punjab & Haryna 73, Munnoottam Kuzhiyil Vayaloli Balan Nambiar Vs. Thekkedath Sankara Kurup reported in AIR 2014(1)KLJ 228 and Gokul Chand Vs. Jagdish Chandra and another AIR 1978 Allahabad 485, cannot be granted to the petitioner as they are distinguishable on their own facts.
[17] So far as the judgment of the Privy Council in the matter of Rani Hemanata Kumari Debi Vs. Midnapur Zamindari Company Limited reported in (1920) ILR 47 PC 485 is concerned, it was rendered prior to the amendment in the Section 17 of the Registration Act.
[18] It is also worth noting that since in the present case by an instrument no decree or order of the court has been transferred or assigned, therefore, Sec.17(1)(e) is not attracted, but mere 9 mentioning of the incorrect provision ie. Sec.17(1)(e) will not render the order of the trial court erroneous. [19] Since the petitioner had no pre-existing right in the property prior to the compromise decree and by the decree for the first time right was created, therefore, the trial court has rightly held that the decree is required to be registered. Hence, I am of the opinion that the impugned order passed by the trial court does not suffer from any patent illegality. [20] Even otherwise, the Supreme Court in the matter of Jai Singh and others Vs. Municipal Corporation of Delhi and Another reported in 2010(9) SCC 385 while considering the scope of interference under Article 227 of the Constitution, has held that the jurisdiction under Article 227 cannot be exercised to correct all errors of judgment of a court, or tribunal acting within the limits of its jurisdiction. Correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
[21] The writ petition is accordingly dismissed.
(Prakash Shrivastava) JUDGE vm