R.S.A. No.687 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 687 of 1985 Date of Decision: 23.07.2010 Ramesh Chand son of Sh. Ram Sarup son of Parma, son of Surja, resident of village Staundi, Tehsil and District Karnal, (now deceased) represented through his legal representatives:- (i) Smt. Vimla widow; (ii) Nagender Kumar son; (iii) Joginder Singh son; (iv) Sushila daughter; all residents of village Madloda, District Panipat. ... Appellants Versus Badlu son of Phool Singh son of Surja, resident of village Staundi, Tehsil and District Karnal. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sanjay Majithia, Senior Advocate, with Mr. Shailender Sharma, Advocate, for the appellants. Respondent exparte. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, R.S.A. No.687 of 1985 2 dated 24.09.83, rendered by the Court of Sub Judge IInd Class, Karnal, vide which, it decreed the suit of the plaintiff, and, the judgement and decree dated 09.11.84, rendered by the Court of District Judge, Karnal, vide which, it dismissed the appeal. 2. The facts, in brief, are that, Ramesh Chand, defendant (now deceased), filed a Civil Suit No. 455/80, against Badlu, plaintiff (now respondent), which was decreed, in his favour, vide judgement and decree dated 24.11.80, by the Court of Senior Sub Judge, Karnal, declaring him to be the owner in possession of the land, in dispute. The said decree, was challenged, by the plaintiff, on the grounds, that he was the owner in possession of the land, in dispute; that he was an old and illiterate man; that the defendant, who was his distant relative, obtained his thumb-impressions, on several blank and typed papers, on the pretext of getting electricity connection for the tubewell; that the defendant, by playing fraud and misrepresentation, obtained the decree dated 24.11.80, in his favour; that he never engaged Mr. S.L. Gautam, Advocate, who had allegedly represented him, and, filed written statement, on his behalf, in the previous suit; that he never admitted the claim of the defendant, nor, did he thumb-mark any paper for that purpose; that, no summons, was issued or ever served, on him, in that suit; that he never made the defendant, owner of the land, in dispute, by way of a family settlement; that the decree dated 24.11.80, could not be passed, in view of the fact, that the defendant, was never in possession of the land, in dispute, nor had any pre-existing right therein and the decree related to the property worth upwards Rs. 100/-, and, as such, R.S.A. No.687 of 1985 3 required stamp and registration, for want whereof, it did not confer any right or title in him. The defendant, was many a time asked, to admit the claim of the plaintiff, over the land, in dispute, and, to desist from his nefarious designs, but, to no avail. Ultimately, a suit for declaration and permanent injunction, was filed. 3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the plaintiff, had no locus-standi, to file the suit; and that he was estopped from filing the suit by his own act and conduct. It was stated that the plaintiff, could not challenge the decree dated 24.11.80, which was suffered by him, in favour of the defendant, of his own free will, in respect of his immovable property. It was denied that any fraud or misrepresentation was ever played, on the plaintiff. It was further stated that, the defendant, was brought up by the plaintiff, and, his marriage, was also performed by him. It was further stated that, in a family gathering, the plaintiff himself, promised to give the land, in dispute, to the defendant. It was further denied that, the plaintiff, was in possession of the land, in dispute. It was further stated that, in fact, the defendant, was the owner in possession of the land, in dispute. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the decree dated 24.11.80 in Civil Suit No. 455 of 1980 was obtained from the Court of learned Senior Sub Judge, Karnal, by misrepresentation and R.S.A. No.687 of 1985 4 fraud and if so, whether that decree is liable to be set aside? OPP (ii) Whether the plaintiff has no locus standi to file the present suit? OPP (iii) Whether the suit is not maintainable in the present form? OPD (iv) Whether the plaintiff is estopped by his own act and conduct from filing this suit? OPD (v) Relief. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendant (now appellant), which was dismissed, by the Court of District Judge, Karnal, vide judgement and decree dated 09.11.84. 7. Still feeling dissatisfied, the instant Regular Second Appeal, was filed by the appellant. 8. During the pendency of appeal, the appellant, died, and, is now being represented by his legal representatives. 9. I have heard the Counsel for the appellants, and, have gone through the evidence and record of the case, carefully. 10. The following substantial questions of law, arise in this appeal, for the determination of this Court:- (i) Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, and, contrary to the settled principle of law, that a consent decree, if created right and title, on the R.S.A. No.687 of 1985 5 appellant, in respect of the immovable property worth Rs. 100/- or upwards, required stamp and registration, in the absence whereof, the same, was illegal and liable to be set aside? (ii) Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, and law, on the point, that the plaintiff (now respondent), was not estopped by his own act and conduct, from filing the suit? 11. The Counsel for the appellants, submitted that, no doubt, Ramesh Chand, defendant (now deceased), was not related to the plaintiff/respondent, and, as such, was not a member of his family, yet, the consent decree dated 24.11.80, suffered by him (plaintiff), in his favour, of his own free will, in respect of the immovable property, worth upwards Rs. 100/-, did not require stamp and registration, and, as such, the same, was legal and valid, to confer title, in respect of the property, in dispute, in him. He further submitted that, no doubt, the plaintiff/respondent, set up a plea of fraud and misrepresentation, yet, the same, was not proved. He further submitted that, the consent decree dated 24.11.80, is as good a decree as the one, passed on merits, and, the plaintiff/respondent, was estopped, from challenging the same, by way of filing the suit, on the ground, that the same, in the absence of stamp and registration, was illegal. He also placed reliance, on Gurdev Kaur and another Vs. Mehar Singh and others, AIR, 1989, Punjab and Haryana, 324, a case, decided by a Division Bench of this Court, in support of his contentions. He further submitted that the judgements and decrees of the Courts below, thus, being perverse, are liable to be R.S.A. No.687 of 1985 6 set aside. 12. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, 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 Courts below, 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. The first question, that arises for consideration, is, as to whether, the defendant/appellant, was a member of the family of the plaintiff/respondent. It was admitted by the Counsel for the appellant, that the defendant, was not a member of the family of the plaintiff. He further admitted that, the appellant, was also not nearly related to the plaintiff, in any manner, though, he was, from the same brotherhood. It is evident, from the copy of the plaint of the earlier suit, filed by Ramesh Chand, defendant (now deceased), against Badlu, that he (Badlu), was issueless. He, however, stated in the earlier R.S.A. No.687 of 1985 7 plaint, that Badlu, was living with him, and, as such, he was looking after him. He further stated, in the plaint of the earlier suit that, as such, in the family gathering, the plaintiff, agreed to give him the land, in dispute. Since the defendant (now deceased), was admittedly not a member of the family of the plaintiff, nor was related, to him, in any manner, the question of any bonafide dispute, between the parties, relating to the property, in dispute, did not at all arise. A family settlement, is arrived at, between the members of the family, with a view, to amicably settle the family disputes, so as to bring about peace and harmony. The defendant (now deceased), was merely a very distant relative of the plaintiff. Under these circumstances, the question of entering into family settlement, with him, by the latter, did not at all arise. It is, therefore, held that, no family settlement, could be arrived at, between the parties, for the reasons recorded above. 13. The next question, that arises for consideration, is, as to whether, the decree dated 24.11.80, allegedly suffered by the plaintiff/respondent, in favour of the defendant (now deceased), created right, in the immovable property, worth Rs. 100/- or upwards, in him (defendant), for the first time, and, if so, whether, in the absence of stamp and registration, it could be said to be a legal and valid decree. In Bhoop Singh Vs. Ram Singh and others (1996-1), The Punjab Law Reporter, 559 (SC), the principle of law, laid down, was to the effect, that if a decree creates right and title, in respect of immovable property, worth Rs. 100/- or upwards, in favour of a person, for the first time, then, it compulsorily requires to be stamped and registered. It was R.S.A. No.687 of 1985 8 further held that, for want of stamp and registration, such a decree, could be said to be illegal and void. As stated above, the defendant (now deceased), had no pre-existing right, in the property of the plaintiff/respondent. Since the decree aforesaid, created right and title, in him, in respect of the immovable property, worth upwards Rs. 100/-, for the first time, in view of the settled principle of law, laid down, in Bhoop Singh's case (supra), for want of stamp and registration, the same was illegal and void. Even otherwise, it is settled principle of law, that if a compromise, arrived at, between the parties, on the basis whereof, a decree is passed, is against a public policy or prescription of a statute, the same is illegal and void. It could be said that, vide the decree, referred to above, the plaintiff/respondent, gifted the property, in favour of the defendant (now deceased). The gift deed requires stamp and registration, in the absence whereof, it does not confer any right or title, in the immovable property, on the donee. In State of Punjab (now Haryana) and others Vs. Amar Singh and another, 1974, PLJ, 74 (SC), the following principle of law, was laid down:- “Where a compromise goes against a public policy, prescription of a statute or a mandatory direction to the Court to decide on its own certain fundamental facts, a razi cannot operate to defeat the requirement so specified or absolve the Court from the duty. The resultant order will be ineffective. After all, by consent or agreement parties cannot achieve what is contrary to law and a decree merely based on such agreement cannot furnish a judicial amulet against statutory violation. For “by private agreement, converted into a decree, parties cannot empower themselves to do that which they could not R.S.A. No.687 of 1985 9 have done by private agreement alone”. The true rule is that “the contract of the parties is nonetheless a contract, and subject to the incidents of a contract, because there is superadded the command of the Judge”. Where a statute, embodies a public policy and consequentially pressites the presence of some conditions for grant of reliefs, parties cannot by-pass the law by the exercise of a consent decree or order, and mere judicial imprimatur may not validate such decree or order where the Court or Tribunal is not seen to have applied its mind to the existence of those conditions and reached its affirmative conclusion thereon. Such mindless orders are a nullity but where the stage of the proceedings, the materials on record and/or the recitals in the razi disclose the application of judicial mind, the order is beyond collateral attack merely on the score that it does not ritualistically writes into the judgement what is needed by the statute. Where high public policy finds expression in socio- economic legislation contractual arrangements between interested individuals sanctified into consent or compromise decrees or orders cannot be binding on instrumentalities of the State called upon to enforce the statute, although the Tribunals enjoined to enforce the law may take probative note of the recitals in such compromise or consent statements in proof of facts on which their jurisdictions may have to be exercised. Further, if there is no evidence either by way of admissions in consent statements and razis or otherwise on the record, the relief sanctioned by the statute cannot be granted and orders or decrees which purport to grant them sans proof of the legal requirements will be a nullity.” 14. The crux of the principle of law, laid down, in State of Punjab and others' case (supra), was to the effect, that if a R.S.A. No.687 of 1985 10 compromise, between the parties, is against a public policy or prescription of a statute, any decree, passed on the basis thereof, could be said to be a nullity. In the instant case, transfer of immovable property, worth Rs. 100/- or upwards, in favour of the defendant (now deceased), creating right and title, in him, for the first time, could not be effected, until and unless, such decree, was stamped, according to the Stamp Act and registered, according to the Registration Act. Under these circumstances, the compromise and the decree, passed on the basis thereof, in the instant case, was against the public policy, as also, the Stamp and Registration Acts, and, as such, the Courts below, were right, in coming to the conclusion, that the same, was a nullity. The findings of the Courts below, in this regard, therefore, do not warrant any interference. 15. Now coming to Gurdev Kaur and another's case (supra), decided by a Division Bench of this Court, it may be stated here that, in view of the principle of law, laid down, in Bhoop Singh's, and, State of Punjab and others' cases (supra), decided by the Apex Court, that a decree, creating right and title, in favour a person, in respect of the immovable property, worth Rs. 100/- or upwards, for the first time, in the absence of stamp and registration, was illegal and void, any principle of law, laid down, to the contrary, in Gurdev Kaur and another's case (supra), decided by a Division Bench of this Court, shall not hold the field. The mere fact that, in State of Punjab and others' case (supra), the main question, which fell for decision, before the Apex Court, was with regard to the determination of surplus area. The R.S.A. No.687 of 1985 11 consent decree, was also the subject matter of appeal, before the Apex Court, in State of Punjab and others' case (supra). Ultimately, the Apex Court, held that, the consent decree, passed by the Court, in that case, to reduce the surplus area, in favour of a person, in respect of the immovable property, being against public policy and prescription of statute, was illegal and void. No help, therefore, can be drawn, by the Counsel for the appellants, from Gurdev Kaur and another's case (supra), in support of his contention. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 16. Now coming to the question of estoppel, it may be stated here, that there cannot be any estoppel against statute. Since Stamp and Registration Acts, prohibited the transfer of immovable property, worth Rs. 100/- or upwards, except provided therein, and, the decree passed, being contrary, to the same, was certainly, against the said Statutes. It is settled principle of law, that a decree based on compromise, remains essentially a contract, between the parties, with seal of the Court, super- imposed thereon, and, is open to challenge, on all grounds, on which a contract can be vitiated. Consequentially,the consent decree, can be challenged not only, on the grounds available under the Contract Act, such as fraud, mistake or misrepresentation, but, also on any of the grounds, available under any law, which prohibits such a contract or declares it to be ineffective, so far as the transfer of any rights, in immovable property are concerned. In this view of the matter, the plaintiff/respondent, was not estopped, from filing the suit, challenging R.S.A. No.687 of 1985 12 the decree, interalia, that the same for want of stamp and registeration, was illegal, and, thus, did not confer any right and title, in the defendant (now deceased). The submission of the Counsel for the appellants, in this regard, also being without merit, must fail, and the same stands rejected. 17. No other point, was urged, by the Counsel for the appellants. 18. In view of the above discussion, it is held, that the judgements and decrees of the Courts below, are based on the correct reading and due appreciation of evidence, as also law, on the point, and, therefore, are neither perverse nor illegal, and, do not warrant interference of this Court. The same, are, thus, liable to be upheld. 19. The substantial questions of law, depicted above, are answered, against the appellants. 20. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same stands dismissed with costs. 23.07.2010 (SHAM SUNDER) Amodh JUDGE