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2009 DIGILAW 513 (JK)

Kuldeep Singh v. Prithpal Singh

2009-10-28

BARIN GHOSH, MOHAMMAD YAQOOB MIR

body2009
1. The suit seeking declaration and possession having been decreed in respect of 11 Kanals and 15 Marlas of land falling under Survey nos. 1829 and 1838, situate at Ranbirpora, Anantnag, the appellants before us preferred an appeal and the said appeal having been dismissed, the present Letters Patent Appeal has been filed. 2. In the suit, respondent no. 1 claimed to be the adopted son of one Shri S. Sucha Singh. He claimed that Shri S. Sucha Singh made a gift in his favour. He claimed that Shri S. Sucha Singh made wills in his favour. He claimed that Shri S. Sucha Singh acknowledged in a compromise that he is in possession as owner of the land in respect whereof the suit was decreed. He, however, did not claim partition of the landed properties left behind by Shri S. Sucha Singh, or any right in relation thereto, except in the said 11 Kanals and 15 Marlas of land and in respect of 10 Kanals of land comprised in Survey no. 410 situate at Ranbirpora, Anantnag. With the plaint, the plaintiff had annexed certified copy of a comprise deed in-between himself and one Abdul Jalil Khan, presented and accepted by the Deputy Commissioner, Anantnag, in relation to the said 11 Kanals and 15 Marlas of land. The said compromise deed is dated December 18, 1975 on which, apart from the plaintiff and Abdul Jalil Khan, Shri S. Sucha Singh had put in his signature. The said compromise was accepted by the Deputy Commissioner, Anantnag on December 24, 1975. In paragraph 6 of the plaint, the following averments were made: "That it was during the lifetime of S. Sucha Singh a dispute arose between the plaintiff and one Abdul Jalil Khan about the entries made in the Revenue Records in relation to the suit property. The matter was compromised by the parties in the appeal preferred by Jalil Khan against the orders of Circle Officer Mattan. According to the compromise so arrived at Jalil Khan was given absolute ownership and possession of 4 Kanals and 5 Marlas from survey No. 1829-Min, and from survey No. 1835-Min he was given land measuring 1 Kanal and 15 Marlas situated at Ranbir Pora, (Wantrag). According to the compromise so arrived at Jalil Khan was given absolute ownership and possession of 4 Kanals and 5 Marlas from survey No. 1829-Min, and from survey No. 1835-Min he was given land measuring 1 Kanal and 15 Marlas situated at Ranbir Pora, (Wantrag). In lieu thereof the plaintiff was admitted to be the owner and in possession of land measuring 3 Kanals and 15 Marlas from Survey No. 1829 and from Survey No. 1836-Min the plaintiff was declared owner and in possession of land measuring 8 Kanals situated at Ranbir Pora, Anantnag. Thus in terms of the aforesaid agreement, a certified copy of which is attached herewith as Annexure `A, the plaintiff is the recognized owner and in possession of the following property: a/ Land measuring 3 Kanals and 15 Marlas from Survey No. 1829 Min; b/ Land measuring 8 Kanals from Survey No. 1838-Min; and c / Land measuring 10 Kanals from Survey No. 410 situated at Ranbirpora, Anantnag. The compromise was also accepted, besides the plaintiff, by S. Sucha Singh who in token thereof, as would appear from the records, signed and affixed his hand impression." 3. The copy of the said compromise, as was accepted by Abdul Jalil Khan; Plaintiff; and Shri S. Sucha Singh before the Deputy Commissioner, did not speak a word about the land measuring 10 Kanals in Survey No. 410 situate at Ranbirpora, Anantnag. The claim pertaining to the said land, as appears to us, was founded solely on the gift deed. In paragraph 6 of their written statement, the defendants dealt with the averments made in paragraph 6 of the plaint, contents whereof are as follows: "Para 6 is incorrect and denied. The said compromise is not binding on defendants, nor does it confer any title to the plaintiff. Neither the defendants nor the father of the defendant No. 1 was party to the said proceedings. Plaintiff being an army personnel, he was in better position to resume the land which was under the tenancy of Mr. Jalil Khan, as such he was authorized to launch the proceedings and enter into compromise with said Jalil Khan. That the compromise decree prepared by the Deputy Commissioner, Collector, is without jurisdiction, for the land compromised in the said compromise decree does not fall within the Agrarian Reforms Act as the land being admittedly as an orchard. Jalil Khan, as such he was authorized to launch the proceedings and enter into compromise with said Jalil Khan. That the compromise decree prepared by the Deputy Commissioner, Collector, is without jurisdiction, for the land compromised in the said compromise decree does not fall within the Agrarian Reforms Act as the land being admittedly as an orchard. As such Deputy Commissioner had no jurisdiction to pass the decree." 4. Inasmuch as the wills were cancelled and the gift deed was not registered, the trial court, despite declaring the plaintiff as the adopted son of Shri S. Sucha Singh, decreed the suit only to the extent of the said land measuring 11 Kanals and 15 Marlas falling in Survey nos. 1829 and 1838/min solely on the basis of the said compromise, as was accepted by the Deputy Commissioner, Anantnag. On an appeal, the learned Single Judge of this Court, while dismissing the cross appeal, as not pressed, also dismissed the appeal preferred against the judgment and decree passed by the trial court, and affirmed the same, principally relying on the said comprise and acceptance thereof by the Deputy Commissioner, Anantnag. 5. Before us, it was contended on behalf of the defendants that the said compromise and the acceptance thereof are per se illegal and, at the same time, evidence on record would suggest that the plaintiff was not the adopted son of Shri S. Sucha Singh. In order to cut short the matter, the learned counsel for the plaintiff submitted that his client has not claimed, nor would claim, any estate left by Shri S. Sucha Singh on the basis that the plaintiff is the adopted son of Shri S. Sucha Singh and, accordingly, we are not going into the question whether the plaintiff was or was not the adopted son of Shri S. Sucha Singh. 6. The one and the only question which requires determination in this appeal is, what is the effect of the said compromise? 7. The learned counsel for the defendant-appellants submitted that Shri S. Sucha Singh, through whom the plaintiff claims, was the owner of the subject land unless his death in terms of the law governing him. 6. The one and the only question which requires determination in this appeal is, what is the effect of the said compromise? 7. The learned counsel for the defendant-appellants submitted that Shri S. Sucha Singh, through whom the plaintiff claims, was the owner of the subject land unless his death in terms of the law governing him. It was submitted that until such land was transferred by Shri S. Sucha Singh by a valid instrument to the plaintiff, the plaintiff could not claim to be the owner of the land in question and, accordingly, could not stake a claim in regard thereto, either while dealing with a tenant of the land or while making representation before the Deputy Commissioner, Anantnag during the lifetime of Shri S. Sucha Singh. It was contended that in terms of the provisions contained in Section 49 of the Registration Act and Section 138 of the Transfer of Property Act applicable to the State, neither transfer, nor any claim for possession, of land without a registered instrument can be entertained. It was submitted that there is nothing on record which would suggest that the land was ever transferred to the plaintiff by Shri S. Sucha Singh while he was alive and, as such, in law, the presumption would be that the plaintiff entered into the subject-compromise as a representative of Shri S. Sucha Singh. It was contended that, as would be evidenced from the compromise itself, the same was for correctness of records and correction of records could only be applied for by the owner of the land either by himself or through his agent. It was submitted that the compromise was recorded in a proceeding for resumption of the subject-land. It was contended that the proceeding for resumption, resulting in the said compromise, must have had been made under the J&K Agrarian Reforms Act, 1972. It was contended that, in terms of Section 3 of the J&K Agrarian Reforms (Suspension of Operation) Act, 1975, the operation of the provisions of the J&K Agrarian Reforms Act, 1972 and all proceedings thereunder, or relating thereto, and pending on the date of commencement of the Act, were directed to remain in suspension till such date the Government may, by notification in the Government Gazette, appoint. It was contended that the Government by notification in the Government Gazette suspended proceedings under the Act upto December 31, 1975. It was contended that the Government by notification in the Government Gazette suspended proceedings under the Act upto December 31, 1975. It was contended that, in such view of the matter, the said compromise as well as the acceptance thereof by the Deputy Commissioner, Anantnag, were nullity, inasmuch as they were in contravention of law made by the Legislature. 8. It was submitted that although the effect of J&K Agrarian Reforms (Suspension of Operation) Act, 1975 and the notification issued by the Government in exercise of the power conferred thereunder was not pleaded in the written-statement, but the same being a pure question of law, such a plea can be advanced at any stage. It was also added that from the evidence on record, it would be evidenced that, to which there appears to be no dispute as such, evidence was tendered on behalf of the plaintiff that part of the land was orchard and as such the land did not come within the ambit of the J&K Agrarian Reforms Act, 1972. The learned counsel appearing in support of the appeal drew our attention to a number of judgments rendered by the Honble Supreme Court for the proposition that, when an authority lacks inherent jurisdiction to do a thing, the thing done by him is a nullity and, accordingly is of no effect and that, in any proceeding or even in a collateral proceeding, when a claim is founded on such nullity, the same can be defended by showing that the same is a nullity; and also for the proposition that there is no estoppel against law and, accordingly, if a stand is taken by a party, which is contrary to law, the same will not preclude him from taking a diagonally opposite stand; provided the same is in accordance with law. 9. We feel that these submissions are not applicable to the issue with which we are concerned. In the plaint, the plaintiff had stated that the dispute, which resulted in the compromise, arose about the entries made in the revenue records. It was not stated that the plaintiff applied for resumption of the land in question. 9. We feel that these submissions are not applicable to the issue with which we are concerned. In the plaint, the plaintiff had stated that the dispute, which resulted in the compromise, arose about the entries made in the revenue records. It was not stated that the plaintiff applied for resumption of the land in question. The compromise, a certified copy whereof was annexed to the plaint, did not say that the same was made in connection with a proceeding initiated for resumption of land, but stated that the same is being made in connection with an application filed for correction of revenue records. In the written-statement, it was stated that plaintiff, being an army personnel, was in a better position to resume the land which was under the tenancy of Jalil Khan, as such he was authorized to launch the proceeding and enter into compromise with said Jalil Khan. With that, it was added that the compromise decree prepared by the Deputy Commissioner-Collector, is without jurisdiction. Therefore, the appellants insinuated that the subject-compromise was in connection with a claim for resumption of land and the plaintiff, being an army personnel, was in a better position to resume the land. That the application and the connected appeal, which resulted in the compromise, were for resumption of land was not sought to be established by the appellants before the trial court. However, the appellants in the written-statement, in no uncertain terms, accepted that the plaintiff was authorized to launch proceedings and to enter into compromise. In the absence of any attempt to prove that the proceeding authorized to be launched was a proceeding for resumption of land and the certified copy of the compromise in no uncertain terms holding out that the proceeding was for correction of revenue records, it would be fair to proceed on the basis that the authorization to launch the proceeding, as accepted in the written-statement, was for correction of revenue records and in connection therewith a further authorization was given to enter into compromise. That the compromise was accepted by Shri S. Sucha Singh, through whom the appellants claim, was not denied specifically in the written-statement filed by the appellants. That the compromise was accepted by Shri S. Sucha Singh, through whom the appellants claim, was not denied specifically in the written-statement filed by the appellants. The compromise in no uncertain terms held out that the plaintiff, in terms of the compromise, shall be recognized as the owner and in possession of the land measuring 3 Kanals and 15 Marlas under Survey no. 1829 and 8 Kanals under Survey no. 1838 situated at Ranbirpora, Anantnag. In a proceeding for correction of revenue records, it was thus acknowledged by the owner and the tenant of the subject-land that the plaintiff is the owner and in possession thereof. It is not the contention of the appellants that the provisions contained in J&K Agrarian Reforms Act, 1972 had any application in relation to a proceeding for correcting revenue records. That being the situation, it cannot be contended that, since part of the land was orchard and since J&K Agrarian Reforms Act 1972 was suspended as on December 24, 1975, the said compromise is a nullity and, accordingly, on the basis thereof no claim can be put forward. 10. It is true that transfer of land without a registered transfer deed in terms of the provisions contained in Section 49 of the Registration Act and Section 138 of the Transfer of Property Act, as applicable to the State, cannot be recognized. But the fact remains that neither the Transfer of Property Act nor the Registration Act requires registration of an instrument whereby a tenant holds out that his landlord is in possession of the land in which he claims to be tenant and thereby surrenders his claim for tenancy. In the circumstances, surrender of claim for tenancy by Jalil Khan in the land in question in the absence of a registered instrument can be taken note of when the fact of such surrender had been clearly depicted in the compromise deed. The compromise, in addition to such surrender of tenancy, records ownership of the plaintiff in the land in question. Recognition of such ownership had been accepted by the owner of the land as far back as on December 18, 1975. To that, there appears to be no dispute. The compromise, in addition to such surrender of tenancy, records ownership of the plaintiff in the land in question. Recognition of such ownership had been accepted by the owner of the land as far back as on December 18, 1975. To that, there appears to be no dispute. The right, title and interest of the owner in the land in question having thus been recognized by the owner himself in the plaintiff, as far back as on December 18, 1975 and he, during his lifetime, and after his death his heirs and legal representatives, having not taken any step to question the same within the period of limitation, the title of the plaintiff in the land in question stood perfected. 11. That being the situation, we refuse to interfere with the judgment and order under appeal and, accordingly dismissed the appeal.