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2021 DIGILAW 576 (KAR)

Soumya v. Halappa Siddappa Pujari

2021-04-21

P.N.DESAI, SREENIVAS HARISH KUMAR

body2021
JUDGMENT : SREENIVAS HARISH KUMAR, J. 1. The Senior Civil Judge, Raibag dismissed the suit O.S. No. 151/2013 by his judgment dated 16.06.2016 and hence this appeal by the plaintiffs. Referring to the parties with respect to their rank in the suit, the material facts, precisely stated, are as below: 2. The plaintiffs 1 to 3 are the children of the 4th plaintiff and the 2nd defendant. The 4th plaintiff is the mother of plaintiffs 1 to 3. The suit is in respect of agricultural land to an extent of 2 acres in R. Sy. No. 554/B/P-1 of Raibag village (referred hereafter as suit property). On 15.10.1993, the Tahsildar of Raibag Taluk granted the suit property to the 2nd defendant imposing a condition of non-alienation for a period of fifteen years. In the year 2012, noticing that the 1st defendant was making an attempt to get his name entered in the RTC of the suit property, the 2nd defendant objected to it, but the Tahsildar certified the entry in favour of the 1st defendant. The plaintiffs challenged the Tahsildar's order by filing an appeal before the Assistant Commissioner, Chikodi. They came to know that the 1st defendant obtained the mutation entry in his favour on the basis of compromise decree in a suit filed in the year 1997. The 1st defendant tried to disturb the plaintiffs' possession over the suit property taking advantage of the revenue records standing in his name, and there arose some differences of opinions between the plaintiffs and the 2nd defendant and this resulted in the plaintiffs instituting a suit O.S. No. 421/2012 in the Court of Principal Civil Judge, Raibag claiming the relief of partition and separate possession of their share. This suit ended in a compromise holding that the plaintiffs were entitled to 4/5th share in the suit property. When the plaintiffs sought to get their names entered in the revenue records on the strength of the compromise decree and possession over their 4/5th share, the revenue authorities were not ready to enter their names in the record of rights and that the 2nd defendant too objected for entering the plaintiffs' names in the Register of Record of Rights. When the plaintiffs sought to get their names entered in the revenue records on the strength of the compromise decree and possession over their 4/5th share, the revenue authorities were not ready to enter their names in the record of rights and that the 2nd defendant too objected for entering the plaintiffs' names in the Register of Record of Rights. The 1st defendant denied the title and therefore the plaintiffs instituted the suit seeking declaration of their title to the extent of 4/5th share in the suit property and for permanent injunction to restrain the defendants from causing obstruction and disturbance to their possession of their share in the suit property. 3. The 2nd defendant did not contest the suit, but the 1st defendant in his written statement contended that the suit property was the self-acquired property of the 2nd defendant having acquired it by virtue of a grant in his favour by the Tahsildar. He instituted a suit, O.S. No. 266/1997 against 2nd defendant and in the said suit, there was compromise to the effect that the 2nd defendant relinquished all his right over the suit property in his favour and thereby he took over the possession of the suit property. He could not get his name entered in the revenue records immediately after the compromise was accepted because when grant was made in favour of 2nd defendant, a condition of non-alienation for a period of fifteen years had been imposed. Noticing this prohibition as to alienation in the grant order, the Tahsildar entered his name in the columns, 'Other Rights' and 'Cultivator's name' of the RTC. After completion of fifteen years period, he applied for accepting the mutation in his name. Thus his name was entered in the RTC. The 2nd defendant challenged the acceptance of mutation in the name of 1st defendant by filing an appeal before the Assistant Commissioner, Chikodi, but it was also dismissed. The 1st defendant stated that the plaintiffs have suppressed all these material facts inspite of having knowledge of the same. He also stated that when the compromise in O.S. No. 266/1997 was accepted, the 4th plaintiff was not married to the 2nd defendant and that their marriage took place three years later. The 1st defendant stated that the plaintiffs have suppressed all these material facts inspite of having knowledge of the same. He also stated that when the compromise in O.S. No. 266/1997 was accepted, the 4th plaintiff was not married to the 2nd defendant and that their marriage took place three years later. The 1st defendant asserted to be in possession of the suit property and stated further that the suit, O.S. No. 421/2012 filed by the plaintiffs against the 2nd defendant was collusive and the compromise therein was also tainted with collusion. Stating that the plaintiffs do not have right over the suit property, he pleaded for dismissal of the suit. 4. The trial court framed the following issues: 1. Whether the plaintiffs prove that, the suit land was granted by Tahsildar, Raibag on 15.10.1993 and they are in joint possession of the same? 2. Whether the 1st defendant proves that, the 4th plaintiff is not married with the 2nd defendant at the time of compromise decree passed in O.S. No. 266/1997 on the file of Prl. Civil Judge, Raibag? 3. Whether the defendant No. 1 proves that, the suit land was granted to the 2nd defendant and it is not an ancestral property? 4. Whether the 1st defendant proves that, the decree obtained by the plaintiffs in O.S. No. 421/2012 is a fraudulent decree? 5. Whether the plaintiffs are entitled for share? If so, what is their extent? 6. What order or decree? 5. Perusal of the issues would indicate the trial court appears to have not comprehended the pleadings properly. The plaintiffs claim to be the absolute owners being in possession of the suit property on the basis of the compromise decree in O.S. No. 421/2012 which they instituted against the 2nd defendant. Therefore, the issue relating to title should have been framed. Actually issue No. 1 relating to grant of land to the second defendant was not necessary to be framed as it is admitted by the first defendant in his written statement. Therefore, we find that issue No. 1 needs to be deleted and in its place, an issue relating to title of the plaintiffs has to be framed in accordance with Order 41 Rule 24 CPC. Hence we have raised the following issue, and deleted issue No. 1 framed by the trial Court. Therefore, we find that issue No. 1 needs to be deleted and in its place, an issue relating to title of the plaintiffs has to be framed in accordance with Order 41 Rule 24 CPC. Hence we have raised the following issue, and deleted issue No. 1 framed by the trial Court. "Do the plaintiffs prove that the compromise in O.S. No. 421/2012 confers title on them over 4/5th share in the suit property?" 6. Having framed the above issue, we are of the opinion that this issue may be decided by us in this appeal itself as the evidence available on record is sufficient to determine this issue and pronounce judgment thereon. Order 41 Rule 24 clearly states that if the evidence on record is sufficient to enable the appellate Court to pronounce judgment, it may, after resettlement of issues, finally determine the suit notwithstanding that the judgment of the Court from whose decree appeal is preferred has proceeded wholly upon some ground other than on which the appellate Court proceeds. We have found on reading the judgment of the trial Court that it has actually not focused its attention to determine the title of the plaintiffs, rather it has proceeded on the footing of possession alone except making a stray observation that the plaintiffs have not established their right. The findings of the trial Court are as below: When the suit property was granted to the 2nd defendant, he had not married plaintiff No. 4. The suit property is not ancestral or joint family property of defendant No. 2, it was his self-acquisition as it was granted to him by the government. In O.S. No. 421/2012, the plaintiffs wrongly pleaded that the suit property was ancestral joint family property though there was compromise between the plaintiffs and 2nd defendant in O.S. No. 421/2012, they did not challenge the decree in O.S. No. 266/1997. There is a collusion between the plaintiffs and defendant No. 2 for the purpose of harassing defendant No. 1. If defendant No. 1 obtained the mutation of revenue records to his name in the year 2012, it was because of the prohibition as to alienation for fifteen years imposed at the time of grant in favour of 2nd defendant and therefore there was no infirmity in 1st defendant obtaining revenue entries in his name in the year 2012. If defendant No. 1 obtained the mutation of revenue records to his name in the year 2012, it was because of the prohibition as to alienation for fifteen years imposed at the time of grant in favour of 2nd defendant and therefore there was no infirmity in 1st defendant obtaining revenue entries in his name in the year 2012. In the suit O.S. No. 421/2012, the 1st defendant was not a party, this is another factor indicating collusion between the plaintiffs and the 2nd defendant. The conduct of the parties is therefore very much important. The possession is also with 1st defendant, and the plaintiffs have not produced any evidence to show their possession of the suit property. The 1st defendant has succeeded in proving that the plaintiffs obtained fraudulent decree in O.S. No. 421/2012. Therefore the plaintiffs do not having any right over the suit property. 7. We need to reappreciate the oral evidence of two witnesses, PW1 and PW2, examined from the plaintiff's side and one witness, DW1 from the defendant's side in the background of the documentary evidence as per Ex. P. 1 to P. 19 and Exs. D. 1 to D. 7 produced by the plaintiffs and the defendants respectively. Before that we would like to refer to points of arguments canvassed by Sri Chetan Munnolli for the appellants and Sri Anand Kolli for the respondents for the purpose of framing points for determination in accordance with Order 41 Rule 31 CPC. 8. It was the argument of Sri Chetan Munnoli that the plaintiffs 1 to 3 are the children and plaintiff No. 4 is the wife of the second defendant. The suit property was granted to the second defendant as evidenced by Ex. P. 1. The grant of suit property to second defendant was with a condition that he should not alienate it for a period of 15 years. Yet he entered into an agreement of sale with the first defendant for selling the suit property to the latter. The first defendant, instead of filing a suit for specific performance, filed a suit, O.S. No. 266/1997 for permanent injunction to restrain the second defendant from selling the suit property to anybody except him. This suit was not maintainable at all, it was also a collusive suit between defendant No. 1 and defendant No. 2. The first defendant, instead of filing a suit for specific performance, filed a suit, O.S. No. 266/1997 for permanent injunction to restrain the second defendant from selling the suit property to anybody except him. This suit was not maintainable at all, it was also a collusive suit between defendant No. 1 and defendant No. 2. Yet, in the said suit, there was a compromise between them as evidenced by Ex. D. 3 and D. 4. This compromise was also collusive. The effect of compromise was that the second defendant relinquished his right, title and interest in favour of the first defendant. This kind of compromise was also void because the first defendant did not have pre-existing right in the suit property so that the second defendant could relinquish his rights in favour of the first defendant. Since the first defendant did not have pre-existing right, the compromise ought to have been registered. For this reason the first defendant did not derive any right, title and interest over the suit property. 9. Further he submitted that the possession of the suit property remained with the plaintiffs and the second defendant. Because of some differences between the plaintiffs and the second defendant, the plaintiffs had to file a suit, O.S. No. 421/2012 for partition against the second defendant. In this suit there was a compromise according to which, the second defendant conceded that the plaintiffs would be entitled to 4/5th share in all. This compromise conferred title on the plaintiffs. The first defendant, taking advantage of the revenue entries accepted in his name, started interfering with the plaintiffs' possession. This was the reason for filing the present suit. In this regard, it was his further argument that the compromise in O.S. No. 421/2012 since resulted in creation of interest to the extent of 4/5th share of the plaintiff, they have become the absolute owners and the trial Court taking note of all these aspects should have decreed the suit. The conclusion of the trial Court that the plaintiffs are not in possession of the suit property and therefore they are not entitled to the relief of declaration is erroneous and it is to be set aside. The conclusion of the trial Court that the plaintiffs are not in possession of the suit property and therefore they are not entitled to the relief of declaration is erroneous and it is to be set aside. In support of his argument that the compromise in O.S. No. 266/1997 required registration, he placed reliance on the judgment of the Supreme Court in the case of Bhoop Singh V. Ram singh Major and others (1995 AIR SCW 3927). 10. Sri Anand Kolli argued that the trial court has come to correct conclusion that the plaintiffs are not in possession. Whether the suit O.S. No. 266/1997 was maintainable or not, the compromise therein cannot be ignored. In fact, the first defendant is related to the plaintiffs and the second defendant, and therefore the relinquishment of right made by the second defendant in favour of first defendant cannot be said to be invalid. If the plaintiffs were really aggrieved, they should have challenged the said compromise in the same suit. In the case on hand, they cannot contend about the validity of the compromise; Order 23 Rule 3-A of CPC is a clear bar. In this regard, he referred to a judgment of the Supreme Court in the case of Trilokinath Singh Vs. Anirudh Singh (D) Thr. LRs and Others (Civil Appeal No. 3961/2020). 11. It was further submission of Sri Anand Kolli that actually the compromise in the second suit, i.e., O.S. No. 421/2012 was a collusive suit between the plaintiffs and the second defendant. They are all residing together in the same house. The address given in the cause title of the plaint shows very well that they are all residing together. In view of this collusion, the said compromise was bad and moreover it does not bind the first defendant because he was not a party to O.S. No. 421/2012. The possession of the suit property has been with the first defendant since the year 1997 although he obtained the revenue entries in his name in the year 2012. Noticing that the plaintiffs are not in possession, the trial court rightly dismissed the suit and hence this appeal is devoid of merits. 12. The above argument leads to formulate the following points for discussion. Noticing that the plaintiffs are not in possession, the trial court rightly dismissed the suit and hence this appeal is devoid of merits. 12. The above argument leads to formulate the following points for discussion. i. Whether the compromise in O.S. No. 421/2012 establishes the title of the plaintiffs over 4/5th share in the suit property as argued by the appellants' counsel? ii. Is the finding of the trial Court that the plaintiffs are not in possession of the suit property, correct? iii. Whether the trial Court has rightly dismissed the suit? 13. Point No. 1: Discussion on this point also answers issue No. 1 that we have resettled as above. First we need to advert to the compromise in O.S. No. 266/1997. The grant of suit property to the second defendant as evidenced by Ex. P. 1 is not disputed. In the plaint, the plaintiffs have stated that the suit property is ancestral property of the second defendant, but in the cross-examination, PW1 has clearly admitted that the land was granted to her husband, i.e., the second defendant, much before she married him. The plaintiffs were not in picture at the time the compromise in O.S. No. 266/1997 was reported. Ex. D. 4 is the certified copy of the compromise petition filed under Order 23 Rule 3 CPC and Ex. D. 3 is the compromise decree. It appears that the matter was referred to Lokadalat after filing of the compromise petition in the Court. PW1 in the cross examination has stated that she was not aware of the suit O.S. No. 266/1997 and the compromise reported there. But this answer cannot be believed to be correct because in the plaint itself there is a reference to the compromise of the year 1997. Therefore, there did take place a compromise between the first and the second defendant in O.S. No. 266/1997. The said suit was for permanent injunction to restrain the defendant therein (the second defendant herein) from alienating the suit property except to himself. The said suit was founded on the premise that the second defendant had executed an agreement of sale in favour of first defendant for a consideration of Rs. 1 lakh and that the second defendant made an attempt to sell the suit property breaching the terms of the agreement. The said suit was founded on the premise that the second defendant had executed an agreement of sale in favour of first defendant for a consideration of Rs. 1 lakh and that the second defendant made an attempt to sell the suit property breaching the terms of the agreement. In that event, the first defendant should have filed a suit for specific performance, instead he brought a suit for injunction which was nothing but a camouflaged suit for specific performance and of course, maintainability of such a kind of suit would arise. But we are not concerned about the maintainability and we limit our examination to the aspect whether the first defendant derived any right, title and interest over the suit property by virtue of compromise. 14. Ex. D. 2 is the certified copy of the plaint in O.S. No. 266/1997. In para 2 of the plaint, it is shown that the first defendant is related to the second defendant, it is stated that the second defendant is the grandson of first defendant's elder brother. But it has been elicited from DW1, i.e., the first defendant, in the cross examination that second defendant's father Mallappa is not his relative and that he does not know whether the second defendant's mother is the daughter of one Mayappa Poojari. Therefore from these answers, it is possible to draw an inference that there is no consistent evidence as regards the actual relationship between the first and the second defendant. Sri Chetan Munnoli referred to this part of cross examination to argue that because there was no relationship between the two, the first defendant did not have pre-existing right to derive right over the suit property by virtue of the release or relinquishment made by the second defendant. Of course, his argument has force. There is also another aspect to be mentioned here, there is no dispute that the suit property was the self acquisition of the second defendant and in that view, the first defendant cannot claim to be having pre-existing right. If we peruse Ex. D. 3 and D. 4, clause No. IV states that the defendant therein (the second defendant herein), relinquished his right over the suit land for a consideration of Rs. 1 lakh which amount the first defendant being the plaintiff therein had spent towards the family of the mother of the second defendant. If we peruse Ex. D. 3 and D. 4, clause No. IV states that the defendant therein (the second defendant herein), relinquished his right over the suit land for a consideration of Rs. 1 lakh which amount the first defendant being the plaintiff therein had spent towards the family of the mother of the second defendant. That means a right was created in favour of the first defendant for the first time. According to Sec. 17(2)(vi) of the Registration Act, any decree or order of a Court does not require registration. The exception is that if the decree or order is made on a compromise with respect to immovable property which is not the subject matter of the suit, registration is necessary. But in this case, the compromise was in respect of the suit property, but it had the effect of creation of a right in the first defendant for the first time which falls within the ambit of Sec. 17(1)(b) of the Registration Act. Therefore the said compromise involving the relinquishment of right by the second defendant in favour of the first defendant required registration. This position is made clear by the Hon'ble Supreme Court in the case of Bhoop Singh (supra). It is held at para No. 16 and 17 as under: "16. We have to view the reach of 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 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 document is compulsorily registrable." Therefore for want of registration of the compromise in O.S. No. 266/1997, the first defendant did not derive any right, title or interest over the suit property. 15. Sri Anand Kolli's argument was that the compromise in O.S. No. 266/1997 should have been challenged in the same suit and it cannot be questioned in the subsequent suit. In support of his argument, he has referred to a judgment in the case of Triloknath Singh (supra). In this regard it is to be stated that, what we have examined is whether the first defendant derived any title by virtue of the compromise, we have not gone into the question of validity of the compromise. It is true that in Triloknath Singh, the question discussed is the forum where the validity of the compromise is to be questioned. We do not think that we have to examine the case in the light of the principle laid down in Triloknath Singh and it is not necessary also. 16. Now we examine the question whether the plaintiffs' title can be declared on the basis of compromise in O.S. No. 421/2012. From the oral and documentary evidence, it transpires that actually the suit property is the self acquisition of the second defendant as it was granted to him by the Tahasildar of Raibag Taluk. The plaintiffs might have stated that the suit property was ancestral, but the evidence shows that suit property is the self acquisition of second defendant. Just because suit property was his self acquisition, there was no impediment for the property being shared equally by the plaintiffs and the second defendant if the latter was agreeable for such an arrangement. Looked in this view, the compromise in O.S. No. 421/2012 as evidenced by Ex. D. 7 was permissible and in fact they entered into such a compromise and therefore the plaintiffs claim collectively 4/5th share in the suit property. Registration of compromise was not necessary in view of Sec. 17(2)(vi) of the Registration Act. But, unhesitatingly an inference can be drawn that the suit O.S. No. 421/2012 as also the compromise therein was collusive between the plaintiffs and the second defendant. Registration of compromise was not necessary in view of Sec. 17(2)(vi) of the Registration Act. But, unhesitatingly an inference can be drawn that the suit O.S. No. 421/2012 as also the compromise therein was collusive between the plaintiffs and the second defendant. In the cause title of the plaint filed in O.S. No. 421/2012, the plaintiffs as also the second defendant are shown to be the residents of the same house. The second defendant did not choose to contest the suit. Though in the plaint filed in the suit before us, it is stated that the second defendant objected to entering the name of the plaintiffs in the revenue records, after the acceptance of compromise in O.S. No. 421/2012, it is also stated in para no. 2 of the plaint that the plaintiffs and defendant No. 2 are in peaceful possession and enjoyment of the suit property. Therefore an inference may be drawn that O.S. No. 421/2012 was a collusive suit. 17. The next aspect is important. If Ex. D. 6 and Ex. D. 7 are perused, it becomes quite clear that the compromise decree does not indicate demarcation of the portion of the property allotted to each plaintiff individually or all of them collectively. Partition attains finality only after division of property by metes and bounds and to this effect there must be a final decree. A compromise decree in a partition suit can be considered as final decree if in the compromise petition, share allotted to each party is described with boundaries and measurements. If such description is not given in the compromise petition, the decree based on such a compromise cannot have the effect of final decree; and in that event a proceeding has to be initiated for drawing final decree. In the instant case, Ex. D. 6 and D. 7 do not contain the boundaries of 4/5th share of the plaintiffs collectively or 1/5th share of each plaintiff. This requirement being conspicuously absent, it is not possible to say as to in respect of which portion of the entire suit property, they derived title. Even there is no evidence to this effect. Therefore, the compromise in O.S. No. 421/2012 did not result in creation of title over 4/5th share of the plaintiffs. This requirement being conspicuously absent, it is not possible to say as to in respect of which portion of the entire suit property, they derived title. Even there is no evidence to this effect. Therefore, the compromise in O.S. No. 421/2012 did not result in creation of title over 4/5th share of the plaintiffs. Scrutiny of the evidence of PW1 in this regard clearly indicates that she has failed to prove the title over 4/5th share of the suit property. Therefore, point no. 1 is answered in negative. 18. Point No. 2: The plaintiffs' exclusive possession over their 4/5th share in the suit property has not been proved. In fact in the plaint itself, they have stated that they are in joint possession along with the second defendant. That means even after the compromise in O.S. No. 421/2012, the joint possession continued. The plaintiffs have examined an independent witness, i.e., PW2, to prove their possession. He does not speak about the exclusive possession of the plaintiffs, rather his evidence shows joint possession of the plaintiffs and the second defendant. The evidence of PW2 regarding joint possession is not believable because Ex. P. 10 and P. 11 altogether show a different position regarding possession. Ex. P. 11 is the order dated 20.11.2012 passed by the Tahsildar of Raibag Taluk accepting the mutation in favour of the first defendant. Ex. P. 10 is the RTC extract in which the order of Tahsildar is reflected in column no. 10 and the name of first defendant being written in columns 9 and 12. The second defendant made an appeal to the Assistant Commissioner, Chikkodi, challenging the order of Tahsildar as evidenced by Ex. D. 1. The said appeal was dismissed. In Ex. D. 1 there is a reference to the compromise decree in O.S. No. 266/1997 and it could be the reason for accepting the mutation in favour of the first defendant. Whether the compromise in O.S. No. 266/1997 conferred title on the first defendant or not, is altogether a different aspect; but the said compromise has relevancy to the extent of establishing the first defendant's possession. Ex. D. 2 is the certified copy of the plaint in O.S. No. 266/1997 where it has been pleaded very clearly by the first defendant (plaintiff in that suit) that he took over possession of the suit property in part performance of the agreement. Ex. D. 2 is the certified copy of the plaint in O.S. No. 266/1997 where it has been pleaded very clearly by the first defendant (plaintiff in that suit) that he took over possession of the suit property in part performance of the agreement. If really possession had not been delivered to him as stated in Ex. D. 2, he (DW1) should have been cross examined with reference to contents of Ex. D. 2. Except suggestions being given to DW1 that he is not in possession, we do not find that he has been discredited as far as his evidence in chief regarding his actual possession over the suit property is concerned. The trial Court has in fact recorded a finding that the possession of the suit property is with the first defendant and we too are of the same opinion. Therefore we do not find any infirmity in the findings of the trial Court that the plaintiffs are not in possession of their 4/5th share of the suit property. Point No. 2 is answered in affirmative. 19. Point No. 3: The discussion on point No. 1 shows that the plaintiffs' title is not proved and point No. 2 shows that plaintiffs are not in possession. Assuming for argument sake that plaintiffs do have title over the suit property, without seeking possession, declaratory relief cannot be granted. Their suit is for declaration of title and injunction only. Since it is found that plaintiffs are not in possession, the plaintiffs are not entitled to any relief. Though the trial Court has not given elaborate reasons for dismissing the suit, its ultimate conclusion is correct and therefore this appeal deserves to be dismissed. Hence the following order. ORDER Appeal is dismissed. There is no order as to costs.