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2004 DIGILAW 1322 (PNJ)

Hari Chand v. Daya Chand

2004-12-07

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging the view taken by the learned Additional District Judge, Bhiwani in his judgment and decree dated 23.7.1999 while disagreeing with the decision of the Civil Judge (Jr. Division), Charkhi Dadri, who had dismissed the suit of the plaintiff-respondents in toto, vide his judgment dated 4.9.1997. The plaintiffs-respondents have filed a Civil Suit No. 367 of 1988/1986 instituted on 15.9.1988/31.5.1996 seeking a declaration against the defendant-appellant to the effect that the Civil Court decrees dated 15.4.1988 and 14.6.1988 suffered by one Mohlar titled as Hari Chand V/s. Mohlar were null and void. It was further claimed that the mutation dated 18.6.1988 sanctioned on the basis of the decree passed in Civil Suit No. 318 of 1988 on 14.6.1988 was also illegal and not binding upon the rights of the plaintiff-respondents. The Civil Judge dismissed the suit by concluding that Mohlar himself did not challenge those decree during his life time and had specifically stated before the Court that he had given his land to one Smt. Shanti, who was the daughter of his brother. The afore-mentioned Smt. Shanti also did not challenge the decree suffered by Mohlar in favour of the defendant-appellant Hari Chand. It is pertinent to mention that Budh Ram had two sons Mohlar and Bhagwana. Bhagwana had died during the life time of his brother Mohlar and was survived by his daughters Smt. Shanti, Smt. Roshni and Smt. Sumitra. As Mohlar was unmarried and issue-less, one Hari Chand who is allegedly the sisters son of Mohlar started residing with him. He is alleged to have served him and on account of his services rendered to Mohlar, possession of the land in dispute was handed over to the defendant-appellant as owner and thereafter, Mohlar suffered decrees dated 15.4.1988 and 14.6.1988 in favour of the defendant-appellant, which resulted in entry of mutation dated 18.6.1988. The afore-mentioned decrees as well as mutation have been the subject matter of challenge before the Courts below. The trial Court dismissed the suit in toto with the findings that Mohlar and defendant-appellant Hari Chand used to reside together. 2. The afore-mentioned decrees as well as mutation have been the subject matter of challenge before the Courts below. The trial Court dismissed the suit in toto with the findings that Mohlar and defendant-appellant Hari Chand used to reside together. 2. However, the findings recorded by the trial Court were reversed because neither Smt. Shanti, the original plaintiff (now represented by her LRs plaintiffs-respondents No. 1 to 4) has appeared in the witness box nor any evidence was produced on record showing the existence of family settlement between the parties. It has further been found that Smt. Shanti was the daughter of Bhagwana and niece of Mohlar and therefore, could not constitute a Joint Hindu Family with Mohlar as she did not enjoy any pre-existing right in the land owned by Mohlar nor transfer of land worth more than Rs. 100/-could be effected without the execution of a registered sale deed in her favour. In these circumstances, no family settlement could have been acted upon for execution of the transfer deed without paying the registration charges as envisaged by Section 17(2) of the Registration Act, 1908 (for brevity 1908 Act). The learned Additional District Judge has taken the aforesaid view on the basis of law laid down by the Supreme Court in the case of Bhoop Singh V/s. Ram Singh Major, (1996-1)112 P.L.R. 559 (S.C.) holding that neither the decree nor any family settlement could constitute the basis for conferring any right on the plaintiffs-respondents. However, issues No. 3 and 4 with regard to the locus standi to file the suit by Smt. Shanti, who was found to be outside the Joint Hindu Family constituted by Mohlar, were decided against the plaintiffs-respondents. Feeling aggrieved by the findings of the learned Additional District Judge declaring that the judgments and decrees dated 15.4.1988 and 14.6.1988 were illegal, the defendant-appellant has preferred the present appeal and the plaintiff-respondent has filed cross-objections. 3. After hearing the learned counsel at a considerable length, I find that there is no question of law raised in the instant appeal, which may warrant interference of this Court under Section 100 of the Code. The findings are recorded on the basis of cogent evidence showing that the defendant-appellant or Smt. Shanti did not have any pre-existing right in the land, which was subject matter of judgment and decree dated 15.4.1988 and 14.6.1988. The findings are recorded on the basis of cogent evidence showing that the defendant-appellant or Smt. Shanti did not have any pre-existing right in the land, which was subject matter of judgment and decree dated 15.4.1988 and 14.6.1988. Therefore, no transaction with regard to the afore-mentioned land could have been undertaken without following the mandatory provisions of Section 17(2) of the Registration Act, 1908. The reliance of the Additional District Judge on the judgment of the Supreme Court in Bhoop Singhs case is meritorious and no fault can be found with the same. Similarly, I also do not find any substance in the cross-objections as the question of locus standi for filing a suit by Smt. Shanti (now represented by her LRs) being no member of the Joint Hindu Family, is also without any legal infirmity. It was on that account that the plaintiffs-respondents were not held entitled to any declaration in terms of the prayer made nor she has been found to have any locus standi to file such a suit. Therefore, the appeal or the cross-objections do not deserve admission. 4. It is appropriate to make a reference to the judgments of the Supreme Court on which reliance has been placed by the learned counsel for the defendant-appellant namely Bachan Singh V/s. Kartar Singh and Ors., 2002(3) R.C.R. (Civil) 495. In that case, it has been held that a consent decree suffered by a party in a suit seeking a declaration that he has become owner of the land on the basis of adverse possession, would not require any registration under Section 17(2) of 1908 Act. It was in these circumstances that the Supreme Court has taken the view that registration of such a consent decree would not be necessary: The learned counsel also placed reliance on a judgment of this Court in the case of Jagdish V/s. Ram Karan, 2003(1) R.C.R. (Civil) 657 to argue that a decree based on family settlement, is not required to be registered. There can not be any dispute with the legal proposition to which reference has been made by the learned counsel. However, it has to be considered whether a family settlement incorporated the pre-existing right or it created new rights between the parties as has been ruled by the Supreme Court in Bhoop Singhs case (supra). There can not be any dispute with the legal proposition to which reference has been made by the learned counsel. However, it has to be considered whether a family settlement incorporated the pre-existing right or it created new rights between the parties as has been ruled by the Supreme Court in Bhoop Singhs case (supra). The judgment of the Supreme Court in Bachan Singhs case (supra) laying down that a consent decree on the basis of adverse possession did not require registration would have no application because perfecting ones title on the basis of adverse possession would bring being pre-existing rights. It is thus obvious that neither judgment of the Supreme Court in the case of Bachan Singh (supra) nor the judgment of this Court in the case of Jagdish (supra) could come to the rescue of the defendant-appellant. It has been found by the learned lower Appellate Court that no family settlement has been proved on record. In such a situation, the view taken by this Court in the case of Jagdish (supra) can not have any application, which may warrant admission of the appellant. Therefore, the argument is without any substance and is liable to be rejected. 5. For the reasons recorded above, the appeal and cross-objections fail and are hereby dismissed.