RSA No. 3741 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3741 of 2006 Date of Decision: 12.08.2009 Piara Singh @ Mukhtiar Singh, aged 45 years, son of Bachan Singh, son of Sunder Singh, r/o Rajia, Tehsil Barnala, District Sangrur. ... Appellant Versus Jagsir Singh and others. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K.S. Shekhon, Advocate, for the appellant. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 18.03.05, rendered by the Court of Additional Civil Judge (Senior Division), Barnala, vide which, it dismissed the suit of the plaintiff, and the judgement and decree dated 12.05.06, rendered by the Court of Additional District Judge, Barnala, vide which, it dismissed the appeal. 2. Land measuring 242 kanals 1 marla, was owned by Bachan Singh son of Sewa Singh son of Ram Singh r/o Rajia, to the extent of RSA No. 3741 of 2006 2 5/8 share. Said Bachan Singh, died, and mutation of his inheritance, was sanctioned, in favour of Nazar Singh, Tota Singh, and Piara Singh, plaintiff (now appellant) his sons, to the extent of 5/24 share each. It was stated that the plaintiff, Tota Singh and Nazar Singh, were having a joint khata, being real brothers. Tota Singh, had also expired. The plaintiff, was having confidence in Tota Singh, being his real brother. It was stated that the plaintiff, is an illiterate and simpleton villager. Jagsir Singh and Jagraj Singh, are the minor sons of Tota Singh, and the nephews of the plaintiff. It was further stated that Tota Singh father and Surjit Kaur mother of Jagraj Singh and Jagsir Singh, minors, by committing fraud upon the plaintiff, and in connivance with Nazar Singh, obtained a decree on 17.09.94, in favour of the minors, in Civil Suit No. 346 dated 23.05.94, in respect of his land, from the Court of Sh. Varinder Aggarwal, the then Sub Judge IInd Class, Barnala. It was stated that Piara Singh, plaintiff (defendant in that civil suit), was never served, nor put in appearance, in the Court. It was further stated that Surjit Kaur mother of Jagsir Singh and Jagraj Singh, in connivance with Tota Singh, brought the plaintiff, to the Court, on the pretext, that they wanted to purchase a tractor, and, as such, his signatures, were required. It was further stated that his thumb impressions, were obtained, on some blank papers, as well as on power of attorney. It was further stated that the plaintiff, had no knowledge, with regard to the civil suit, and the decree, having been passed therein. It was further stated that the plaintiff, came to know, on 21.09.2000, when he RSA No. 3741 of 2006 3 approached the Halqa Patwari, for obtaining copy of the jamabandi, that the land, in question, had been mutated, in favour of Jagsir Singh and Jagraj Singh, and the fraud, had been committed upon him, by Surjit Kaur, and Tota Singh. It was further stated that no family partition/settlement took place amongst the co-sharers. It was further stated that the decree dated 17.09.94, created right and title in Jagsir Singh and Jagraj Singh, for the first time, and for want of registration, it was not legally enforceable. The defendants, were many a time, asked to get cancelled the illegal decree, but to no avail. On their final refusal, to accede to the request of the plaintiff, a suit for declaration, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiff, had no locus-standi, to file the suit. It was further pleaded that the plaintiff, was estopped, from filing the suit, by his own act and conduct. It was further pleaded that the suit, was barred by limitation. It was admitted that the plaintiff, was having two brothers namely Nazar Singh, and Tota Singh. It was also admitted that Tota Singh, had since expired. It was further admitted that Tota Singh, Piara Singh, and Nazar Singh, were having their land, in village Razia, as well as in village Longowal. They were owners, in possession of the said land jointly. The land, in dispute, had been partitioned, by way of family settlement amongst Piara Singh, Nazar Singh, and Tota Singh, in the Month of February, 1993. In that family RSA No. 3741 of 2006 4 settlement, Tota Singh, gave his share in the land situated at Longowal to Piara Singh and Nazar Singh, and a civil suit, bearing No. 111, dated 22.04.94, was decreed by the Court of J.S. Bhinder, the then Senior Sub Judge IInd Class, Sangrur, in that regard. It was further stated that the decree under challenge, was suffered by Piara Singh, plaintiff, and Nazar Singh, regarding the property, situated at village Razia, in favour of Jagraj Singh and Jagsir Singh, sons of Tota Singh, in lieu of the land given to them by him (Tota Singh) at Longowal. It was denied that any fraud was played upon the plaintiff by Surjit Kaur and Tota Singh. It was further stated that judgement and decree dated 17.09.94, were legal and valid. It was further stated that the judgement and decree dated 17.09.94, were passed by the Court concerned, on the basis of admission of the claim of Jagsir Singh and Jagraj Singh. It was further stated that it being a consent decree, did not require registration, as per the provisions of the Registration Act. It was further stated that, even this decree, did not create right and title, in the property, in dispute, for the first time, in favour of Jagsir Singh and Jagraj Singh. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the judgement and decree dated 17.09.94, are null and void? OPP (ii) Whether the suit is within limitation? OPP (iii) Whether the plaintiff is entitled for injunction as prayed for? OPP RSA No. 3741 of 2006 5 (iv) Whether the plaintiff has no locus- standi to file the present suit? OPD (v) Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD (vi) Whether the suit is not maintainable in the present form? OPD (vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff, holding that the decree suffered, in favour of Jagsir Singh and Jagraj Singh, by Piara Singh, plaintiff, did not require any registration, the same, being consent decree. 6. Feeling aggrieved, an appeal, was preferred by the plaintiff/appellant, which was also dismissed, by the Court of Additional District Judge, Barnala, vide judgement and decree dated 12.05.06. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. The following substantial questions of law arise, for consideration in this appeal:- (i) Whether the consent judgement and decree dated 17.09.94 creating right, for the first time, in immovable property worth Rs. 100/- or more was unenforceable at law, for want of registration and the Courts below recorded perverse findings to the contrary? RSA No. 3741 of 2006 6 (ii) Whether the Courts below misread and misappreciated the evidence in holding that the judgement and decree dated 17.09.94, was not the result of fraud and misrepresentation? 8-A. I have heard the Counsel for the plaintiff/appellant, and have gone through the evidence, and record of the case, carefully. 9. The Counsel for the plaintiff/appellant, submitted that, there was no family settlement amongst Nazar Singh, Piara Singh, and Tota Singh. He further submitted that Piara Singh, plaintiff/appellant, was never served, in the suit, filed by Jagraj Singh and Jagsir Singh, against him, and Nazar Singh. He further submitted that, fraud was played upon Piara Singh, by Surjit Kaur mother of Jagsir Singh, and Jagraj Singh, minor sons of Tota Singh, deceased, Tota Singh, and Nazar Singh, and his thumb impressions, on blank papers, were obtained, which were converted into his statement of admission. He further submitted that the judgement and decree dated 17.09.94, created right and title, in Jagsir Singh and Jagraj Singh, for the first time, in the immovable property, worth more than Rs. 100/-, and, as such, the same required registration, and for want thereof, the same was not admissible into evidence. He further submitted that the judgement and decree, being illegal, were liable to be set aside. He also placed reliance on Madan Lal and another Vs. Rajesh Kumar (Dead) through LRs, 2005(3), Civil Court Cases, 506, Mam Chand Vs. Sahib Devi, 2000(2), Civil Court Cases, 717, and Rajni Bajaj and others Vs. Ram Piari, 2006(1), Civil Court Cases, 711 (P&H), in support of his RSA No. 3741 of 2006 7 contention, that the judgement and decree, being illegal, were liable to be set aside. 10 After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the plaintiff/appellant, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. In Gurdev Kaur and another Vs. Mehar Singh and others, AIR 1989 (P&H), 324, a case decided by the Division Bench, it was held as under:- “A compromise or consent decree does not require registration even if it creates title in respect of immovable property of the value of Rs. 100/- or more, provided it is subject matter of suit. For the first time title can be created under a consent or compromise decree. For example, RSA No. 3741 of 2006 8 title is created in plaintiff's favour under a compromise decree which before the date of compromise decree vested in defendant and no consideration is mentioned for passing the title in compromise. This would be nothing but creating of a title for the first time in the plaintiff but it would be wrong to say that consent decree is an instrument of gift. Such a decree would not be an instrument of gift of immovable property within the meaning of Section 17(1)(a) of the Act, so as to require registration. The title in the immovable property can be created by a non-testamentary instrument also and that would be covered by Clause (b) of Section 17(1) of the Act and since the applicability of Clause (b) has been excluded in regard to certain documents enumerated in Clause (i) to (xii) of Section 17(2) of the Act by virtue of Clause (vi), a compromise decree comprising of immovable property, which is subject matter of the suit stands exempted from registration, whereas, a compromise decree relating to the immovable property, other than the subject matter of the suit, is not exempted from registration. For the purpose of decision of the matter as to whether a consent or compromise decree requires registration or not, reference to the sections of the Evidence Act viz. Sections 40, 41, 42, and 44 is not relevant. Sometimes collusion is misunderstood in contra- distinction to consent or compromise. If the rights of a third person are not involved, the compromise decree between the parties would be binding. If rights of a third party are involved in such a matter then the third party can always come forward to show that his title or interest has been affected in collusion with other persons. Also, if transfer was to be made by a written instrument, then, of course, the same has to be stamped and got registered, but if transfer is made by a compromise decree, there is a specific exception contained in Section 17(2) (vi) of the Registration Act. AIR 1986, RSA No. 3741 of 2006 9 Punjab and Haryana, 197. Overruled. A compromise or consent decree can be got set aside on one of the grounds on which a contract can be set aside, namely, if obtained by 'fraud;' 'misrepresentation', or 'coercion' with an additional ground in favour of the minors or persons of unsound mind, if they are able to prove that the next friend or the guardian, who acted on their behalf, was negligent in conducting the proceedings. If none of these grounds is established, the Courts in a subsequent suit, will have no jurisdiction to go behind the consent decree to find out whether the facts stated in the plaint, which culminated into compromise decree were right or wrong. The law framers always intended that the settlements arrived at between the parties in the Court are good and binding and have the legal force, and the matter can be reopened only on the grounds on which a contract can be reopened and not otherwise. The addition of Rule 3A to Order 23 of the Code, has further added that even if it were to be shown that the compromise was unlawful, the suit would not lie. Therefore, unless a ground is established on which compromise or a contract can be avoided, the Courts will have no jurisdiction to reopen or go behind the compromise decrees merely on the basis that whether the facts stated in the plaint, which ultimately concluded by a compromise decree, were correct or not. This is more so because the facts stated, in the plaint, are admitted in the written statement. The defendant and his heirs would be bound by the admission and would be debarred from going back. Sometimes claim is admitted by the defendant by making a statement on oath before Court. He cannot be allowed to go back from his statement. Some other times, written compromise duly signed by the parties is filed in Court in which claim of the plaintiff is admitted. Sometimes the written compromise provides that the plaintiff is the RSA No. 3741 of 2006 10 owner and the defendant has no right, title or interest therein. So under all the eventualities either the claim of the plaintiff stands admitted or title is created in him for the first time under the decree. Under these circumstances, Court will have no jurisdiction to reopen the consent or compromise decree except when fraud, coercion, or misrepresentation in obtaining the consent or compromise, which result in the passing of the decree, is pleaded and proved.” In Gurdev Kaur and another's case (supra) reliance was also placed on Bishundeo Narain Singh and another Vs. Seogeni Rai and others (AIR 1951 (S.C.) 280 and Sontakke and another Vs. Balkrishan Sitaram Sontake (AIR 1954 (S.C.) 352. 11. In Bachan Singh Vs. Kartar Singh and others, 2002(1), PLJ, 59 (SC), it was also held, that the consent decree, does not require registration, in view of the provisions of Section 17(2)(vi) of the Registration Act. 12. Coming to the facts of the instant case, it may be stated here, that Piara Singh, Nazar Singh and Tota Singh (since deceased) being brothers were joint owners in joint possession of the land in dispute, and the land at Razia. It had not been partitioned. It is evident from D9, certified copy of the decree dated 22.04.94, that Piara Singh, plaintiff and Nazar Singh, his brother filed civil suit No. 111 dated 15.03.94 against Tota Singh, in respect of land situated at Longowal. Tota Singh admitted the claim of Piara Singh and Nazar Singh, in that suit and the decree dated 22.04.94, in respect of the share of Tota Singh, in the land, situated at Longowal, was passed in their favour. RSA No. 3741 of 2006 11 Later on civil suit No. 346 of 23.05.94, was filed by Jagsir Singh and Jagraj Singh, minor sons of Tota Singh, through their mother, as natural guardian, against the plaintiff and Nazar Singh, in respect of land situated in village Razia. They admitted the claim of Jagsir Singh and Jagraj Singh, and the judgement certified copy whereof is P2 and the decree, certified copy whereof is P3, dated 17.09.94 were passed in their favour. It is evident from exhibits P2 and P3 that the parties in the suit engaged their Counsel. The Courts below, on appreciation of evidence, were right in holding that, the plaintiff failed to prove through cogent evidence that any fraud was played upon the plaintiff by Tota Singh, in connivance with Surjit Kaur his wife and Nazar Singh his brother. In view of the principle of law, laid down in Gurdev Kaur and anothers' and Bachan Singh's cases (supra) the decree dated 17.09.94, being consent decree, did not require registration, in view of the provisions of Section 17(2)(vi) of the Registration Act. The principle of law laid down in Madan Lal and another Vs. Rajesh Kumar (Dead) through LRs, 2005(3), Civil Court Cases, 506, Mam Chand Vs. Sahib Devi, 2000(2), Civil Court Cases, 717, and Rajni Bajaj and others Vs. Ram Piari, 2006(1), Civil Court Cases, 711 (P&H) cases (supra), decided, by the single Benches of this Court, does not hold the field, in view of the principle of law, laid down, in Gurdev Kaur and anothers' and Bachan Kaur's cases (supra), decided by a Division Bench of this Court, and the Apex Court, respectively. The concurrent findings, recorded by the Courts below, that the RSA No. 3741 of 2006 12 judgement and decree dated 17.09.94, being consent decree, did not require registration, in view of the provisions of Section 17(2)(vi) of the Registration Act, and was enforceable at law; that the decree dated 17.09.94 was not the result of fraud and misrepresentation; that the suit, was barred by time, having been filed, in the year 2000, whereas the decree related to the year 1994; and that the plaintiff/appellant, was not entitled to the declaration prayed for, being based on the correct appreciation of evidence, and law, on the point, warrant no interference, and are liable to be upheld. The submission of the Counsel for the plaintiff/appellant, being without merit,must fail, and the same stands rejected. The substantial questions of law, depicted above, are answered against the appellant. 13. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 12.08.2009 (SHAM SUNDER) Amodh JUDGE