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2002 DIGILAW 684 (PNJ)

Lal Singh v. Jaswant Singh

2002-07-18

V.M.JAIN

body2002
JUDGMENT V.M. Jain, J. - Lal Singh, Plaintiff, has filed this Second Appeal against the judgment and decree dated 12.4.2002, passed by the learned Additional District Judge, vide which the Appeal was accepted, the judgment and decree, passed by the trial Court, were set aside and the suit, filed by Lal Singh, plaintiff, was dismissed by the learned Additional District Judge. 2. The facts, which are relevant for the decision of the present Appeal, are that Lal Singh, plaintiff, filed as suit for declaration to the effect that the judgment and decree dated 13.3.1995, passed in the Civil suit titled as Jaswant Singh etc. v. Gurpal Singh, in respect of the land in dispute, were illegal and void and for seeking joint possession and permanent injunction, restraining the defendants from alienating the suit land in any manner whatsoever. It was alleged that Lal Singh plaintiff, Bhag Singh and Kirpal Singh were joint owners and co-sharers of the suit land and being brothers, they had constructed a joint family house and were living together in mess and cultivation and that the plaintiff was the incharge of the family. It was alleged that Kirpal Singh was the owner of the property, detailed in the head-note of the plaint, and that he died on 16.7.1996. It was alleged that the plaintiff was in jail for sometime and in his absence, defendant Nos. 1 to 4 (defendant Nos. 1 to 3 are the sons of Bhag Singh aforesaid while defendant No. 4 is Bhag Singh himself), hatched a conspiracy to grab the land of Kirpal Singh, who was issueless. It was alleged that the judgment and decree dated 13.3.1995, passed by the Civil Court, were illegal and void and not binding upon the plaintiff, qua his rights in the suit land and were liable to be set aside. It was alleged that the plaintiff, being a brother of Kirpal Singh, was entitled to 1/3rd share out of the property of Kirpal Singh and that the remaining share belonged to defendant Nos. 4 and 5 namely Bhag Singh, aforesaid, and their sister, Surjit Kaur. The said suit was contested by defendant Nos. 1 to 3, alleging therein that Kirpal Singh was residing with defendant Nos. 4 and 5 namely Bhag Singh, aforesaid, and their sister, Surjit Kaur. The said suit was contested by defendant Nos. 1 to 3, alleging therein that Kirpal Singh was residing with defendant Nos. 1 as a member of their family and that Kirpal Singh had voluntarily suffered the decree in question against him of his own accord, as he had already given the suit land to defendant Nos. 1 to 3. It was alleged that the said judgment and decree were perfectly legal and valid and were binding on the parties. It was alleged that Kirpal Singh had surrendered his rights in the suit land to defendant Nos. 1 to 3 in a family settlement. 3. After hearing both the sides and perusing the record, the learned trial court decreed the suit of Lal Singh, plaintiff, holding that the Civil Court decree dated 13.3.1995 was illegal and void and the plaintiff was entitled to the joint possession and injunction against the defendants. It was held that since the Civil Court decree dated 13.3.1995 had not been registered within the specified period, the defendants had not derived any title in the suit land, on the basis of the said decree. In the Appeal, filed by defendant Nos. 1 to 3, the learned Additional District Judge set aside the findings of the learned trial Court and it was held that the plaintiff was estopped from challenging the Civil Court decree because Kirpal Singh himself had not challenged the same and was estopped from challenging the said decree. Resultantly, it was held that the Civil Court decree was perfectly legal and valid and was binding on the parties. Accordingly, the Appeal was accepted and the suit, filed by Lal Singh, plaintiff, was dismissed. Aggrieved against the same, Lal Singh, plaintiff, has now filed the present Appeal in this Court. 4. I have heard learned counsel for the plaintiff-appellant and have gone through the record carefully. 5. Learned counsel for the plaintiff-appellant submitted before me that in view of the law laid down by the Honble Supreme Court, in the case reported as Bhoop Singh v. Ram Singh Major and others, AIR 1996 SC 196, and the law laid down by this Court, in the case reported as Shailesh Kumar v. Mrs. 5. Learned counsel for the plaintiff-appellant submitted before me that in view of the law laid down by the Honble Supreme Court, in the case reported as Bhoop Singh v. Ram Singh Major and others, AIR 1996 SC 196, and the law laid down by this Court, in the case reported as Shailesh Kumar v. Mrs. Sandhya Gupta and ors., 2002(1) PLR 483, the Civil Court decree was required to be registered and since the decree was not registered within the specified period, defendant Nos. 1 to 3 had not acquired any rights in the suit property, on the basis of the said decree. 6. In Bachan Singh v. Kartar Singh and ors., JT 2001(10) SC 64 , a Civil Court decree was passed on 13.11.1981, on the basis of the admitted written statement. Subsequently, in the year 1982, a suit for declaration was filed that the said decree was void and nullity. The suit was dismissed by the trial Court. However, the First Appellate Court allowed the Appeal and decreed the suit of the plaintiff on 30.7.1987. Aggrieved against the same, the defendants preferred the Second Appeal. The High Court allowed the Second Appeal and set aside the judgment and order of the First Appellate Court. Aggrieved against the same, the plaintiff filed the Appeal before the Honble Supreme Court. In the said Appeal, it was submitted before the Honble Supreme Court that the Civil Court decree was liable to be ignored as infact the transaction was a sale and the decree was obtained only to overcome the provisions of the Indian Registration Act. However, this contention was repelled by the Honble Supreme Court and it was held, as under :- "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." 7. We are, therefore, in agreement with the view taken by the High Court." 7. In AIR 1996 SC 196 (supra), previously a Civil Court decree was passed on 6.4.1973 to the effect that the declaration decree was passed to the effect that "the plaintiff will be the owners in possession from today in lieu of the defendant after his death and the plaintiff deserves his name to be incorporated as such in the revenue papers, is granted in favour of the plaintiff against the defendant, in view of the written statement filed by the defendant admitting the claim of the plaintiff to be correct." (emphasis supplied) 8. Subsequently, the second suit was filed, challenging the correctness of the civil Court decree. The trial Court held that the decree was against law and facts. The Appeal was dismissed by the defendant. Even the Second Appeal was dismissed by the High Court. Thereafter, the Appeal was filed before the Honble Supreme Court. It was found by the Honble Supreme Court that one of the reasons for deciding the case against the appellant was that the earlier decree having not been registered, the same could not have conferred any right on the appellant. It was this view of the High Court which had been assailed before the Honble Supreme Court. After considering the case for various angles, it was held by the Honble Supreme Court that clause (vi) was an exception to sub-section (1) of Section 17 of the Indian Registration Act. It was held that the exception engrafted was meant to cover that decree or order of a Court which declares the pre-existing right and did not by itself, create new right, title or interest in praaesenti in the immovable property of the value of Rs 100/- or upwards. It was further held that it would be the duty of the Court to examine in each case whether the parties had pre-existing right to the immovable property and 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 the immovable property of the value of Rs. 100/- or upwards in favour of the other party for the first time either by compromise or pretended consent. 100/- or upwards in favour of the other party for the first time either by compromise or pretended consent. It was further held that if latter be the position, the document was compulsorily registrable. After laying down the proposition of law, the Honble Supreme Court proceed to consider the case before it on facts and found that the decree having purported to create right or title in the plaintiff for the first time that is not being a declaration of pre-existing right, did require registration. 9. In my opinion, the law laid down by the Honble Supreme Court in the aforesaid authority, would be of no help to the plaintiff-appellant in the present case. As referred to above, in the reported case, the earlier civil Court decree had declared the plaintiff to be the owner in possession of the suit property from the date on which the decree was passed. It was under those circumstances that it was held by the Honble Supreme Court that the declaration was not of a pre-existing right. In the present case, it is not disputed before me that in the previous suit, the present defendant Nos. 1 to 3 had alleged ownership by family partition (which had taken place prior to filing of the present suit) and this allegation of theirs was admitted by Kirpal Singh in the written statement and it was on that basis that the decree dated 13.3.1995 was passed by the Civil Court. In my opinion, while passing the Civil Court decree dated 13.3.1995, the Court had given the declaration of the pre-existing rights in favour of the present defendant Nos. 1 to 3, which were created in their favour by virtue of the family settlement, which had taken place prior to the filing of the present suit. In my opinion the previous Civil Court decree did not require registration. The authority 2002(1) PLR 483 (supra) relied upon by learned counsel for the appellant, in my opinion, would also have no application to the facts of the present case, in view of the law laid down by the Honble Supreme Court in Bhoop Singhs case (supra) and Bachan Singhs case (supra). 10. Learned counsel for the appellant could not point out any illegality in the judgment and decree of the Lower Appellate Court which may require interference by this Court in this Second Appeal. 10. Learned counsel for the appellant could not point out any illegality in the judgment and decree of the Lower Appellate Court which may require interference by this Court in this Second Appeal. This is especially so when no substantial question of law is involved in this Appeal. Hence the present Appeal is dismissed in limine. Appeal dismissed.