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2007 DIGILAW 82 (ORI)

Kalia Barik v. Tikeswar Deo

2007-02-05

A.K.SAMANTARAY

body2007
JUDGMENT A. K. SAMANTARAY, J. — This Civil Revision Petition is directed against the order dated 23.4.2005 passed by learned Civil Judge (Sr. Division), Patnagarh in C.S. No.93 of 2003 rejecting the compromise petition filed by the parties to the suit on the sole ground that the value of the property being more than Rs.100/- and the sale transaction being through an unregis¬tered document is hit by Section 54 of the Transfer of Property Act and as such no compromise could be recorded. 2. Before going to the merit of this revision it would be pertinent to state the factual proposition under which the Civil Suit was filed and the parties entered into compromise and filed compromise petition on the date of appearance of the defendants/opposite parties. The petitioner instituted the suit against the opposite parties arraying them as defendants praying therein for declaration of his title, confirmation of possession and consequential relief. The suit land involved in the suit originally belonged to one Nruparaj Deo and the said Nruparaj was the recorded tenant in the current settlement in respect of the said land. These opposite parties/defendants are the two sons of said Nruparaj, the original recorded tenant and Nruparaj in order to meet his legal necessity sold the suit land to the plaintiff for a consideration of Rs.200/- on 11.5.1983 and delivered pos¬session thereof and the plaintiff remained in possession of the suit land from the date of the transaction. Said Nruparaj died on 16.7.2003 leaving behind defendants/opposite parties and since after the death of Nruparaj the defendants/opposite parties threatened to dispossess the plaintiff from the suit land, he filed the aforementioned civil suit in the Court of Civil Judge (Sr. Division), Patnagarh. Subsequently, the matter was amicably settled and the parties filed a petition under Order 23 Rule 3 of the CPC to dispose of the suit in terms of the compromise. In the said compromise the defendants/opposite parties admitted the claim of the plaintiff. Learned Civil Judge without considering the scope and ambit of Order 23 Rule 3 of the CPC rejected the compromise petition by the impugned order dated 23.4.2005. 3. At the stage of admission, this revision was taken up for final disposal and although the opposite parties had entered appearance through learned counsel Mr. S.K. Samantaray and his associates, none appeared on their behalf at the time of hearing. 4. 3. At the stage of admission, this revision was taken up for final disposal and although the opposite parties had entered appearance through learned counsel Mr. S.K. Samantaray and his associates, none appeared on their behalf at the time of hearing. 4. Learned counsel for the petitioner urged that the Court below while passing the order impugned has failed to appreciate that while considering a petitioner under Order 23 Rule 3 of the C.P.C. he could not have gone to the legality of inter se ar¬rangement between the parties but had to examine as to whether the compromise petition itself is void or not. He further con¬tended that in absence of any materials to establish that the compromise petition itself is void, the learned Civil Judge could not have rejected the petition for compromise on the sole ground that the sale deed on the basis of which the claim of the plaintiff is based is not registered one. Order 23 Rule 3 of the CPC, 1908 postulates as under :- “Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by parties) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith. [So far as it re¬lates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit] Provided that where it is alleged by one party and denied by the other an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.” 5. The learned counsel for the petitioner submits that the compromise petition filed by the parties to the suit has been signed by both the parties to the suit and the defendants/oppo¬site parties have admitted the right, title, interest and posses¬sion of the plaintiff over the suit land since 11.5.1983, i.e., the date of sale transaction entered into by the late father of defendants/opposite parties with the plaintiff/petitioner. They have further admitted that their father, Nruparaj Deo had sold away the suit land on 11.5.1983 to the plaintiff Kalia Barik in order to meet the legal necessity of the family and delivered possession of the same to Kalia on the very same day of sale and the defendants did not challenge the above sale as the same was for the benefit and welfare of their family. 6. As already stated in the impugned order, the learned Civil Judge while rejecting the compromise petition has stated that “in the instant case, the value of the property transacted is admittedly more than Rs.100/-. Therefore, such transaction is directly prohibited under Section 54 of the T.P. Act. That being the position, the compromise petition dated 22.1.2003 is not maintainable in the eye of law being hit by Section 54 of the T.P. Act.” 7. In this connection, the learned counsel for the peti¬tioner relied on a decision of the Hon’ble Apex Court reported in AIR 1996 Sc 196 Bhoop Singh v. Ram Singh Major and others, wherein their Lordships have interpreted the ambit of Section 17(2) Clause 6 and have held in paragraphs 16 and 17 as follows :- “16. We have to view the reach of the Clause (vi), which is an exception to Sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. 17. It would, therefore, 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 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 favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the documents is compulsorily registrable.” 8. If latter be the position, the documents is compulsorily registrable.” 8. In paragraph 18 their Lordships have held : “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.” 9. In view of the mandate of the law under Order 23 Rule 3 of the C.P.C. and the settled position of law as enunciated in the aforementioned dictate of the Hon’ble Apex Court,the learned Civil Judge (Sr. Division) could not have rejected the compromise petition filed by the parties to the suit and if at all he found that by the compromise decree, title or interest was accrued for the first time in immovable property of the value of Rs.100/- or onwards he could have directed the decree drawn on compromise to be registered. In that view of the matter, I have no hesitation to record that the Court below has failed to exercise the juris¬diction vested in him by rejecting the compromise petition by the impugned order. 10. In the result, therefore, I allow the revision, set aside the impugned order dated 23.4.2005 and direct the Court below to record the compromise petition dated 22.10.2003 under Order 23 Rule 3 of the CPC and further direct that the decree drawn in terms of the compromise be registered. 11. Revision is allowed. Revision allowed.