REGULAR SECOND APPEAL No.1779 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1779 of 2010 DATE OF DECISION: FEBRUARY 17, 2011 Ranbeer .... Appellant Versus Murti & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. A. K. Singh Goyat, Advocate for the appellant. Mr. R. K. Saini, Advocate for Mr. R. N. Lohan, Advocate for respondents No.1 & 2. Respondent No.3 ex parte. * * * * L.N. MITTAL, J. (ORAL) Defendant No.1-Ranbeer has filed the instant second appeal. Suit was filed by respondents No.1 and 2-plaintiffs who are mother and sister respectively of both the defendants i.e. defendant No.1-appellant and defendant No.2/proforma respondent No.3. Kanshi Ram was husband of plaintiff No.1 and father of plaintiff No.2 and both the defendants. The dispute relates to inheritance of Kanshi Ram. Plaintiffs alleged that they inherited 1/4th share each in the land held by Kanshi Ram, whereas both the defendants also inherited 1/4th share each therein. However the defendants by fraud obtained consent decree dated 05.04.1989 passed in Civil Suit No.148-C of 1989 against the plaintiffs herein regarding their half share in the suit land inherited by them from Kanshi Ram. The said decree is null and void on account of non-registration thereof. The REGULAR SECOND APPEAL No.1779 OF 2010 -2- plaintiffs accordingly sought declaration that they are owner in possession of half share of the land held by Kanshi Ram and consent decree dated 05.04.1989 and the consequent mutation No.1193 are null and void. Permanent injunction was also claimed. Only defendant No.1 contested the suit whereas defendant No.2 was proceeded ex parte. Defendant No.1 while admitting relationship between the parties, broadly denied the other plaint allegations. Grounds pleaded by the plaintiffs to challenge the consent decree dated 05.04.1989 were controverted. It was also alleged that consent decree dated 05.04.1989 being based on family settlement did not require compulsory registration. Defendant No.1 also made counter claim that if the consent decree is set aside, then shares of the parties in the suit land would not be as claimed by the plaintiffs. On the other hand, it was alleged that suit property was coparcenary property and in view of notional partition, Kanshi ram himself had 1/4th share in the suit land recorded in his name and consequently plaintiff No.2 being daughter of Kanshi Ram would get only 1/16th share in the suit land whereas plaintiff No1 and both the defendants would get 5/16th share each therein. Accordingly counter-claim to this effect was made. Learned Civil Judge (Junior Division), Hansi vide judgment and decree dated 30.04.2008 decreed the plaintiffs' suit and dismissed the counter claim of defendant No.1. Consent decree dated 05.04.1989 was set aside on the ground of non-registration thereof although plea of fraud etc. to challenge the said consent decree was not accepted by the trial court. First appeal preferred by defendant No.1 has been partly allowed by learned Additional District Judge (Fast Track Court), Hisar vide judgment and decree dated 06.04.2010 and thereby while upholding consent decree dated 05.04.1989 to be illegal and null and void etc., counter-claim of defendant No.1 has been decreed holding that REGULAR SECOND APPEAL No.1779 OF 2010 -3- plaintiff No.2 has 1/16th share in the suit land whereas plaintiff No.1 and both defendants have 5/16th share each in the suit land. Feeling aggrieved, defendant No.1 has filed the instant second appeal. I have heard counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that consent decree dated 05.04.1989 was passed on the basis of family settlement and, therefore, the said decree did not require registration. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Som Dev versus Rati Ram, 2006(0) AIJ-SC 37744. It was also contended that consent decree can be challenged on the basis of fraud etc., but in subsequent suit, the court cannot adjudicate as to whether the consent decree was passed on right or wrong facts. Reference in support of this contention has been made to judgment of this Court in the case of Harpal and others versus Smt. Ram Piari and others, 1981 PLJ (492). On the other hand, learned counsel for respondents No.1 and 2 contended that by way of consent decree dated 05.4.1989, plaintiffs allegedly relinquished their half share in the suit land and, therefore, the said decree required compulsory registration but being unregistered, the same cannot affect the rights of the plaintiffs in the suit land. I have carefully considered rival contentions. Admittedly plaintiffs are mother and sister respectively of both the defendants. In other words, parties are closely related and are family members. Defendants are sons and brothers respectively of plaintiff No.1 and plaintiff No.2. Consequently, family settlement among the parties as affirmed by consent decree dated 05.04.1989 did not require compulsory registration. Family settlement always includes give and take. However, concept of family settlement is well recognized by the courts in REGULAR SECOND APPEAL No.1779 OF 2010 -4- India. Consent decree dated 05.04.1989 itself did not for the first time create or transfer any right in the suit land. On the other hand, in view of family settlement among the parties, defendants had become owners of the suit land to the exclusion of the plaintiffs herein. Consent decree dated 05.04.1989 based on admission made by the plaintiffs herein by filing written statement and by making statement in court in the previous suit is only recognition of the said family statement. Consequently, the consent decree did not require compulsory registration. This view finds support from judgment of Hon'ble Supreme Court in the case of Som Dev (supra). No judgment to the contrary has been cited. Plea of fraud etc. taken by the plaintiffs to challenge the consent decree has not found favour with both the courts below. The said finding has not been challenged by the plaintiffs. Even otherwise, in view of statement made by the plaintiffs herein in the court in the previous suit, the said consent decree cannot be said to be based on fraud. Statement recorded in Court carries authenticity and sanctity. Strong evidence is required to depict that the same was obtained by fraud etc., but the plaintiffs have miserably failed to establish the same. Since fraud etc. is not proved, in the instant subsequent suit, facts on the basis of which consent decree dated 05.04.1989 was passed cannot be reopened and adjudicated upon again. This view finds support from judgment of this Court in the case of Harpal (supra). Even otherwise, subsequent suit on the basis of same facts would be barred by principle of res judicata. There is another aspect of the matter. Suit filed by the plaintiffs is hopelessly barred by limitation. Consent decree dated 05.04.1989 has been challenged in the suit which was instituted on 08.12.2005 i.e. more than sixteen years after the passing of the decree. Plaintiffs herein were party to the consent decree dated 05.04.1989 and the said decree is not proved to be result of any REGULAR SECOND APPEAL No.1779 OF 2010 -5- fraud etc. Consequently the said consent decree was required to be challenged within limitation period of three years. However, the suit was filed more than sixteen years after the passing of consent decree dated 05.04.1989. Consequently, the suit is also hopelessly barred by limitation. Following substantial question of law arises for determination in the instant second appeal: Whether in the facts and circumstances of the instant case, consent decree passed on the basis of family settlement among members of the same family, could be set aside on the ground of being unregistered? For the reasons already recorded hereinbefore, the aforesaid question is answered in the negative i.e. in favour of defendants. As a necessary upshot thereof, the instant second appeal is allowed. Judgments and decree of the courts below are set aside and suit filed by the plaintiffs stands dismissed. In view thereof, counter-claim preferred by defendant No.1 has been rendered infructuous. (L. N. MITTAL) JUDGE 17th February, 2011 'raj'