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2005 DIGILAW 1039 (PNJ)

Nirmal Singh (Deceased) Through L. Rs. v. Kartar Singh (Deceased) Through L. Rs.

2005-09-28

M.M.KUMAR

body2005
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 lower Appellate Court in its judgment and decree dated 2.3.1990. The view taken by the learned trial Court, dismissing the suit of the plaintiff-respondent Kartar Singh has been reversed. It has been held by the lower Appellate Court that suit of plaintiff-respondent deserves to be decreed by taking into consideration the compromise dated 15.2.1957, which was the basis of decree dated 15.2.1957 passed in Civil Suit No.209 instituted on 8.5.1956. The lower Appellate Court also took the view that such a judgment and decree of the Court is covered by Sub-clause (vi) of Sub-section (2) of Section 17 of the Registration Act, 1908 (for brevity, the Act).The aforementioned judgment and decree (Exh.PW-3/1 Dated 15.2.1957 and also the compromise-deed (Exh.P-1) dated 15.02.1957 were not accepted by the trial Court on the ground that the, compromise (Exh.P-1) was not genuine and the judgment and decree (Exh. PW-3/1) required registration under Section 17(2)(vi) of the Act. 2. Facts in brief are that Phula Singh was son of Ganda Singh. He was owner of the suit land fully described in the head note of the plaint. On 18.4.1952, he mortgaged the land in favour of one Lachhman Singh son of Harnam Singh for a consideration of Rs.5,000/-. The period of mortgage fixed between the parties was 18 years. The defendant-appellants are the predecessors-in-interest of aforementioned Lachhman Singh. On 25.4.1955, Phula Singh had also executed a sale-deed regarding the suit land and a Haveli existing over it, in favour of Lachhman Singh for a sale consideration of Rs.8,000/-. However, two collaterals of Phula Singh filed Civil Suit No.209 for declaration on 8.5.1956 to the effect that mortgage deed dated 18.4.1952 and sale deed dated 25.4.1955 in favour of Lachhman Singh could not adversely affect their reversionary rights. On 15.2.1957, a compromise (Exh,P-l) was entered into between different collaterals, which included plaintiff-respondent Kartar Singh regarding the suit land. As a consequence, the suit was dismissed as withdrawn vide order of the trial Judge (Exh.PW-3/1) passed on 15,2.1957. On 15.2.1957, a compromise (Exh,P-l) was entered into between different collaterals, which included plaintiff-respondent Kartar Singh regarding the suit land. As a consequence, the suit was dismissed as withdrawn vide order of the trial Judge (Exh.PW-3/1) passed on 15,2.1957. According to terms of the compromise, one half share of the property was to go to Pritam Singh son of Buta Singh, Kartar Singh son of Chanan Singh (plaintiff-re-spondents)and the other half was given to Ganga Singh son of Labh Singh, Harnam Singh son of Lal Singh and Lachhman Singh son of Harnam Singh. 3. Kartar Singh son of Chanan Singh, plaintiff-respondent filed Civil Suit No.234 of 1983 on 8.6.1983, from which the instant appeal has arisen, claiming a declaration to the effect that he is owner to the extent of half share of suit land on the basis of compromise dated 15.2.1957 (Ex.P-1), which is the basis of order dated 15.2.1957 (Exh.PW-3/1). He claims possession of his share by partition. He has also claimed the share of Pritam Singh son of Buta Singh who had died by asserting that the suit land has been allotted in consolidation in lieu of the land, which was mortgaged and later sold by Phula Singh. 4. The trial Court dismissed the suit by recording the findings that the plaintiff-respondent was not proved to be owner of the suit land. In support of all those findings, numerous reasons have been recorded in para 8 of the judgment which read as under: - (a) Civil Suit No.209 dated 08.05.1956 was dismissed by the Civil Judge without referring to the compromise and terms of the compromise could not be construed have been incorporated in order of the Court sc as to attract the exception created by Section 17(2)(vi) of the Act. (b) The plaintiff-respondent failed to show that Harnam Singh was collateral of Phula Singh, because nothing was evident from the Shajra Nasab (Exh.P-7). c) The order dated 15,2.1957 passed by the trial Court in Civil Suit No.209 could also not be accepted, because after the sale deed was considered as null and void, then the suit property was to be restored back to Phula Singh who was alive at that time. c) The order dated 15,2.1957 passed by the trial Court in Civil Suit No.209 could also not be accepted, because after the sale deed was considered as null and void, then the suit property was to be restored back to Phula Singh who was alive at that time. (d) The trial Court further held that neither the plaintiff-respondent Kartar Singh, nor his precessor-in-interest Pritam Singh were party to Civil Suit No.209 decided on 15.2.1957 which was the basic reason for the Court not to pass any decree on the basis of the compromise which was left to the discretion of the parties. (e) Lachhman Singh, the precessor-in-interest of the defendant-appellants had relinquished his rights in immovable property worth more than Rs. 100/- in favour of plaintiff-respondent and others. Therefore, it involved the element of transfer/ alienation or thus, required to be registered. (f) The provisions of Section 17(2)(vi) of the Act extend to exemption from registration only to the decree or order of the Court and not to the compromise deed. 5. However, the trial Court has accepted that plaintiff-respondent Kartar Singh was heir of deceased Pritam Singh. In this regard, the observations of the trial Court read as under: - ...It is manifest from this compromise that a settlement of the landed property sold by Phula Singh to Lachhman Singh was made, according to which, half of the property was agreed to be given to the plaintiff and Pritam Singh. There is no controversy that Pritam Singh has died and the plaintiff is his heir. This fact also stands proved on the basis of the mutation of inheritance of Pritam Singh, which are Ex. PX and Ex.PY. Therefore, on this point, there is no left much controversy. 6. The trial Court also recorded findings that the land in dispute was transferable to Phuia Singh as it was allotted in lieu of the land owned by Phula Singh after consolidation. The suit of the plaintiff-respondent was found to be barred by limitation which finding was based on another finding that the plaintiff-respondent did not ever became co-owner of the land. 7. The learned lower Appellate Court vide its judgment and decree dated 2.3.1990, reversed the findings of the trial Court. The suit of the plaintiff-respondent was found to be barred by limitation which finding was based on another finding that the plaintiff-respondent did not ever became co-owner of the land. 7. The learned lower Appellate Court vide its judgment and decree dated 2.3.1990, reversed the findings of the trial Court. Referring to the observations made by the trial Court that the orders of the Civil Court (Exh.PW-3/1) did not even remotely made a reference to the compromise (Exh.P-1) dated 15.2.1957, the learned lower Appellate Court observed as under:- 11. This observation made by the learned Sub Judge cannot be maintained because in the order Ex.PW3/l vide which the suit filed by Ganga Singh and Hamam Singh was disposed of. A reference has been made as under:- Hasab Biyanat Farikain Bawaza Razinama Haza, Mukadma Das-Badari Keeya Jatta Hai.From this order it cannot be said that no reference to compromise has been made. The compromise Ex.PI is a very detailed document where in the shares of the parties to the compromise, their parentage etc. have been fully mentioned so much so it is specifically mentioned therein that the sale deed and the mortgage deed in favour of Harnam Singh executed by Phula Singh be treated as cancelled. 12. xx xx xx xx xx xx xx 13. Adverting to the compromise deed Ex.P1 it is specifically stipulated therein that the sale deed and the mortgage deed in favour of Harnam Singh executed by Phula Singh be treated as cancelled. The suit was disposed of vide order Ex.PW3/1 wherein it was mentioned that the suit be considered or that it stands disposed of in accordance with the statements of the parties and the compromise. The parties to that compromise deed Ex.P.1 were fully aware of the pros and cons of the facts of the case. They had specifically got their shares stipulated in respect of the property which was the subject matter of the suit. Thus now they cannot come forward and say that they are not bound by the term.... 14. In the given case in hand there is nothing to show that the said compromise or decree was obtained by fraud, misrepresentation, misunderstanding. Thus the said compromise is binding and it cannot be reopened and it is also admissible in evidence. 15. Thus now they cannot come forward and say that they are not bound by the term.... 14. In the given case in hand there is nothing to show that the said compromise or decree was obtained by fraud, misrepresentation, misunderstanding. Thus the said compromise is binding and it cannot be reopened and it is also admissible in evidence. 15. The plaintiffs remained in possession that too as a co-owner under an arrangement or consent by virtue of the compromise referred to above. Thus it is not open to any body to disturb the arrangement without the consent of the others except by filing a suit for partition. It is entitled to continue in possession till joint holding partitioned.... 8. On the basis of the findings recorded by learned Lower Appellate Court, learned Counsel for the defendant-appellant has confined his arguments to the proposition of law which read as under:- Whether a compromise-deed (Exh,P-l) executed between the predecessor in interest of the defendant-appellants and the plaintiff-respondent and others during the pendency of the Civil Suit No.209 dated 08.05.1956 (Exh.PW-3/1) could be considered as part and parcel of the order passed by the Civil Court on 15.02.1957, and, therefore, would qualify for exemption from registration under Section 17(2)(vi) of the Act? 9. Mr. B.R. Mahajan, learned Counsel for the defendant-appellants has argued that by no stretch of imagination, the observation made in the order (Exh.PW-3/1) could be construed to conclude that the terms and conditions of compromise-deed (Exh.P-1) were incorporated in the orders of the Court. The operative part of order in Urdu reads as under:- Hasab Biyanat Farikain Vaza Razinema Hazaa, Mukadma Das-Badari Keeya Jatta Hai. When translated in English, it would read as under: - As per statements of the parties, the case stands dismissed as withdrawn on account of this compromise. 10. According to the learned Counsel, until and unless the compromise becomes part of the order of judgment and decree of the Court, the exemption envisaged by Section 17(2)(vi) of the Act providing for exclusion from registration of a decree or an order of a Court would not be available. In other words, learned Counsel has submitted that order dated 15.02.1957 (Exh.PW-3/1) alongwith compromise-deed (Exh.P-1) dated 15.2.1957 were required to be registered, because there is an element of alienation and transfer in the whole transaction. In other words, learned Counsel has submitted that order dated 15.02.1957 (Exh.PW-3/1) alongwith compromise-deed (Exh.P-1) dated 15.2.1957 were required to be registered, because there is an element of alienation and transfer in the whole transaction. Learned Counsel has maintained that in order to qualify the test of Clause (vi) Sub-Section (2) of Section 17 of the Act, the compromise must be shown to have become part of the decree or order of a Court, failing which, it would be regarded as such an arrangement between the parties which would require registration. In support of his submission, learned Counsel has placed reliance on a Division Bench judgment of Lahore High Court in the case of Fazal Rasul Khan v. Mohd-ul-Nisa A.I.R. 1944 Lahore 394 and argued that in a case where the orders had recorded that Suit compromised and accordingly dismissed was held not to have embodied the terms of the compromise. According to the learned Counsel, the aforementioned view of the Division Bench has been approved by the Supreme Court in the case of Bhoop Singh v. Major Ram Singh and Ors. 11. Mr. Munishwar Puri, learned Counsel for the plaintiff-respondent has vehemently contended that a careful reading of the language of order (Exh.PW-3/1) dated 15.2.1957 would demonstrate that Civil Suit No.209 dated 08.05.1956 was disposed of in view of the compromise, and, therefore, the compromise has been clearly referred to in the order and the same cannot be separated from the order (Exh.PW-3/1). Learned Counsel has emphasized that a compromise decree cannot be made subject matter of challenge unless there are allegations of fraud, misrepresentation and coercion etc. He has maintained that a compromise-decree can be challenged on the grounds on which a contract could be held to be void or voidable. Controverting the argument that order (Exh.PW-3/1) does not make a reference to the compromise (Exh.P-1), learned Counsel has maintained that it is factually incorrect, because when the order passed in Urdu is translated in English, it reads that the suit is disposed of in view of the statements of the parties and in accordance with the compromise. According to the learned Counsel, no third interpretation is involved. In support of his submissions, learned Counsel has placed reliance on a judgment of this Court in the case of Hari Singh v. Gurcharan Singh and Ors. According to the learned Counsel, no third interpretation is involved. In support of his submissions, learned Counsel has placed reliance on a judgment of this Court in the case of Hari Singh v. Gurcharan Singh and Ors. (2003-3)135 P.L.R. 119 holding that once it is shown that there were pre-existing rights anterior to the date of passing of the decree, then the provision of Section 17 of the Act, would not be applicable. He has then placed reliance on a Division Bench judgment of this Court in Gurdev Kaur and Anr. v. Mehar Singh and Ors. (1990-1)97 P.L.R. 334 and argued that a consent decree under Section 17(2)(vi) of the Act would not require registration even if it is created in respect of immovable property worth Rs. l00/-or more, provided it was subject matter of the suit and that such a judgment and decree could be avoided only on the ground of fraud, mis-representation etc. Referring to the observation made in Fazal Rasul Khans case (supra), learned Counsel has argued that the order interpreted in that case to the effect that the suit was compromised and accordingly, dismissed, is entirely different than the language used in the order passed in Civil Suit" No.209 dated 8.5.1956. 12. It is appropriate to make a reference to Section 17(2)(vi) of the Act which carves out an exception to the general rule providing for registration of various kind of documents in Clause 1(a), (b), (c), (d) and (e) and the same read as under:- "17. Documents of which registration is compulsory:- (1) (a), (b), (c), (d) and (e) xx xx xx (2) Nothing in Clauses (b) and (c) of Sub-section (1) applies to- (i) to (v) xx xx xx xx (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 13. A perusal of the aforementioned provision makes it evident that a decree or an order of a Court is exempted from registration, provided the property involved was subject matter of the suit or proceedings, A plain reading of this section clearly indicates that no registration would be necessary under Section 17(2)(vi) of the Act, if the property was subject matter of the proceedings in which the judgment and decree or an order has been passed. If it was not subject matter of such proceedings, then registration would be required. It is not the case of the defendant-appellants that the suit property was not the subject matter of proceedings in Civil Suit No.209 dated 8.5.1956, which resulted into a compromise (Exh,P-l) dated 15.2.1957. Order dated 15.2.1957, therefore, cannot be divorced from the property which was subject matter of the proceedings. Moreover the lower Appellate Court has concluded that the suit was disposed of in view of the submissions of the parties and the compromise, which would mean that the compromise was before the Court. It was not only referred in the order of the Court, but became its part. 14. Arguments based on the judgment of Lahore High Court in the case of Fazal Rasul Khan (supra), does not require any detailed consideration, because in that case, the facts and circumstances were entirely different. The question for determination in that case has been formulated by the Supreme Court in para 7 of the judgment in Bhoop Singhs case (supra), and the same reads as under:- 7. Among the decisions of the High Court to be relied on by Shri Sehgal, the first is one rendered in the case of Fazal Rasul Khan v. Mohd.-ul-Nisa A.I.R. 1944 Lah. 394. The question for determination in that case was whether disposal of a suit by stating "suit compromised and accordingly dismissed", could be said to embody the terms of the compromise. The Bench opined that it would not be unless the terms of the compromise are in some way embodied in the decree or the order, which would be so where a suit is disposed of by saying "suit decreed in the terms of the compromise or suit dismissed in terms of the compromise". This decision is thus on a different point. 15. In the present case, the suit has not been dismissed simply as compromised, but the Court has observed that the suit was dismissed in view of the statements made by the parties and the compromise which was before the Court. Had there been no compromise and statements to that effect made by the parties, then the suit would not have been disposed of. Had there been no compromise and statements to that effect made by the parties, then the suit would not have been disposed of. The observation made by Harris, C.J. in the case of Fazal Rasul Khan (supra) would provide a clear distinction and the same read as under:- The only point which has been argued before us is whether this compromise required registration. If the compromise had been incorporated in the decree, then it is clear that no registration would be required. The respondents contention has been throughout that this compromise was never embodied in the order or decree of the Court. The appellant, on the other hand, contends that the compromise is so incorporated and therefore, registration was unnecessary. A compromise is referred to in the order because it is said "suit compromised and accordingly dismissed." No particular compromise is referred to but is merely said that the parties have compromised and the suit is therefore, dismissed. What the order means is this that the parties have settled their differences and that there is nothing left to adjudicate upon and the suit must fail and is dismissed. In my view, such a statement cannot possibly be said to embody the terms of a particular compromise and unless the terms of this particular compromise are in some way embodied in the decree or the order, then the document must be registered. If the phrase had been "suit decreed in the terms of the compromise or suit dismissed in terms of the compromise" it might well be argued that the particular compromise in question had been embodied in the order or decree. Where it is said that a suit is decreed in terms of a compromise, the decree is unintelligible unless the particular compromise is referred to. In fact the decree involves a reference to the compromise and before the terms of the decree can be ascertained, the compromise must be read. In such a case, it can well be said that the compromise has been embodied and forms part of the decree. In such a case, no registration is required. (Emphasis added). 16. There is clear distinction pointed by the learned Chief Justice namely if the suit is compromised without imparting any knowledge of the compromise to the Court then such a compromise may be considered to have indicated the cause for dismissal of the suit. In such a case, no registration is required. (Emphasis added). 16. There is clear distinction pointed by the learned Chief Justice namely if the suit is compromised without imparting any knowledge of the compromise to the Court then such a compromise may be considered to have indicated the cause for dismissal of the suit. However, when the order concerning a suit is passed in terms of the compromise then the knowledge of compromise is imputed to the Court. Such a compromise becomes part of the judgment, order or decree. In the present case, a perusal of the order Ex. PW31 reveals that the statements of the parties were recorded and then it was observed "...dismissed as withdrawn on account of this compromise". It is clear that the compromise was brought to the knowledge of the court. It appears from the use of word this that compromise Ex.P1 was placed before the Court. The view of the Division Pench would in fact help the plaintiff-respondent. In any case, assistance could be obtained by the defendant-appellants from that judgment. Therefore, on principles as well as on facts, the view taken by the lower Appellate Court deserves to be approved. 17. It is also well-settled that this Court is not to interfere in the findings of fact and law unless the question raised in the appeal is res Integra and needs to answer a debatable legal issue. In this regard, reliance may be placed on the view taken by the Supreme Court in the case of K.G. Shivalingappa v. G.S. Eswarappa. 18. There is nothing on record of that nature except the interpretation of the language used in the order (Exh.PW-3/1). The construction adopted by the lower appellate Court as supplemented by the further reasons given in the preceding paras, has to be accepted for the additional reasons and it does not call for any interpretation in exercise of jurisdiction under Section 100 of the Code. 19. For the reasons afore-mentioned, this appeal fails and the same is dismissed.