RSA No. 1967 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1967 of 2008 Date of Decision: 20.10.09 Lekh Kaur d/o Kahla Singh grand-daughter of Ram Singh Khewatdar of village Manki, Tehsil Malerkotla, now wife of Lal Singh, son of Dasaundhi, r/o village Abbuaal Tehsil and District Ludhiana. ... Appellant Versus 1. Nirmal Singh son of Hardit Singh grandson of Harbhajan Singh son of Attar Singh, r/o village Manki, Tehsil Malerkotla, now practicing as an Advocate in Punjab and Haryana High Court, Chandigarh, real defendant. 2. Gurbachan Singh son of Kahle Singh grandson of Ran Singh; 3. Kuldeep Singh son of Hardit Singh grandson of Harbhajan Singh, residents of village Manki, Tehsil Malerkotla, District Sangrur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. H.N. Mehtani, Advocate, for the appellant. Mr. Arihant Jain, Advocate, and Mr. Arun Jindal, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, RSA No. 1967 of 2008 2 dated 22.03.04, rendered by the Court of Civil Judge (Junior Division), Malerkotla, vide which, it dismissed the suit of the plaintiff, and the judgment and decree, dated 05.02.08, rendered by the Additional District Judge (A), Fast Track Court, Sangrur, vide which, he dismissed the appeal. 2. The facts, in brief, are that, the plaintiff/appellant, claimed herself to be the owner in possession of the land, in dispute. She filed a partition application, under Section 111 of the Punjab Land Revenue Act, 1987, in the Court of Assistant Collector 1st Grade, Malerkotla, for partition of the land, in dispute. In reply to that application, Nirmal Singh, defendant No. 1/respondent, claimed himself to be the owner in possession of the land, in dispute, on the basis of the judgement and decree dated 02.06.84, passed in Civil Suit No. 142 of 07.04.84, titled as 'Nirmal Singh Vs. Lekh Kaur'. It was also stated by defendant No. 1, that as per the revenue record, the mutation, in respect of the land, in dispute, had been sanctioned, in his favour, showing him to be the owner thereof. It was further stated that the plaintiff, obtained the certified copies of the judgement and decree, plaint, written statement, Vakalatnama, as also the statement, allegedly suffered, by her, in the Court of Sh. D.K. Sarpal, the then Sub Judge 1st Class, Malerkotla, in civil suit No. 142 of 07.04.84.` It was further stated that the judgement and decree dated 02.06.84, being the result of fraud and misrepresentation, were illegal, null and void, inoperative, against her rights, and non-existent, in the eyes of law. It was further stated that RSA No. 1967 of 2008 3 the plaintiff, was never served, in Suit No. 142 of 07.04.84, nor did she engage any Counsel therein, to appear, on her behalf. It was further stated that the plaintiff, never appeared, in that suit, for filing written statement, nor did she suffer any statement, admitting the claim of defendant No. 1, in the Court. It was further stated that defendant No. 1, got the decree passed, from the Court, at the back of the plaintiff. It was further stated that the mutation, sanctioned, on the basis of the said decree, was also illegal, null, void, and not binding against the rights of the plaintiff, qua her ownership, in the land, in dispute. Defendants No. 2 and 3/respondents are recorded as co-sharers, in the land, in dispute. The defendants, were many a time asked, to treat the said decree, as null and void, being the result of fraud and not to alienate the land, in dispute, but to no avail. Ultimately, a suit for declaration, joint possession, and permanent injunction, was filed. 3. Defendant No. 1/respondent, put in appearance, filed written statement, and contested the suit. It was pleaded that the suit was barred by limitation. It was stated that Mai was the great grand- mother of defendant No. 1 and grand-mother of the plaintiff. She was married to Attar Singh, great grand-father of defendant No. 1. After the death of Attar Singh, she performed marriage with Ran Singh, grand- father of the plaintiff. It was further stated that Lekh Kaur, plaintiff, is the father's sister (Bua) of defendant No. 1. It was stated that defendant No. 1, was in exclusive possession of the suit property, since the day of family settlement, which was arrived at, more than 15 years earlier to RSA No. 1967 of 2008 4 the filing of the written statement. It was further stated that decree dated 02.06.84, was suffered by the plaintiff voluntarily, which only recognized the pre-existing right of defendant No. 1, in the land, in dispute, on the basis of family settlement, already arrived at. It was further stated that defendant No. 1, had become owner by adverse possession. The remaining averments were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is owner of the land in dispute? OPP (ii) Whether the judgement and decree dated 02.06.84 is illegal, null and void being the result of fraud and mis-representation, if so, its effect? OPP (iii) Whether the plaintiff is entitled to the joint possession to the extent of 1/6th share in the land in dispute? OPP (iv) Whether the plaintiff is entitled to the declaration as prayed for? OPP (v) Whether the plaintiff is entitled to the permanent injunction, as prayed for? OPP (vi) Whether the plaintiff transferred her share in the property in dispute to defendant No. 1 by way of family settlement as alleged? OPD (vii) Whether suit of plaintiff is not maintainable in the present form? OPD (viii) Whether the suit is barred by limitation? OPD (ix) Whether the defendant has become owner of the property in dispute by way of adverse possession? OPD RSA No. 1967 of 2008 5 (x) 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. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Additional District Judge (A), Fast Track Court, Sangrur, vide judgment and decree dated 05.02.08. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the Courts below recorded perverse findings, that there was a legal and valid family settlement, between Lekh Kaur, appellant, on the one hand, and Nirmal Singh, respondent No. 1, on the other hand, and, as such, there was pre-existing right, in his (Nirmal Singh's) favour, in the property, in dispute? (ii) Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, and contrary to the settled position of law that the judgement and decree dated 02.06.84, passed in Civil Suit No. 142 of 07.04.84, did not amount to transferring the right and title, in the immovable property worth RSA No. 1967 of 2008 6 more than Rs. 100/-, for the first time, in favour of Nirmal Singh, respondent No. 1, and, as such, did not require registration? (iii) Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, that the judgement and decree dated 02.06.84, were not the result of fraud, played upon Lekh Kaur, and misrepresentation, made to her, by Nirmal Singh, respondent No. 1? (iv) Whether the Courts below, recorded perverse findings, to the effect, that the suit, was barred by time? 10. The Counsel for the appellant, submitted that Nirmal Singh, respondent No. 1, was not a member of the family of Lekh Kaur. He further submitted that, under these circumstances, there was no question of any legal and valid family settlement, between the parties, and no such family settlement was arrived at, and, as such, there was no pre-existing right, in favour of Nirmal Singh, respondent No. 1, in the property, in dispute. He further submitted that the judgement and decree dated 02.06.84, created right, in the immovable property, belonging to Lekh Kaur, in favour of Nirmal Singh, respondent No. 1, worth upwards Rs. 100/-, for the first time, and, as such, in the absence of registration thereof, were illegal. He further submitted that such an illegal decree, did not confer any right of ownership, upon Nirmal Singh, respondent No. 1. He further submitted that Lekh Kaur, did not appear, in the previous suit, in which, the decree dated 02.06.84, was passed, against her, nor did she engage any Counsel, to defend her RSA No. 1967 of 2008 7 therein, nor did she file any written statement, admitting the claim of Nirmal Singh, respondent No. 1 (plaintiff therein). He further submitted that Nirmal Singh, respondent No. 1, played fraud upon her, and also misrepresented the facts, in the previous suit. He further submitted that, in the previous suit, in which, the decree, was passed, Lekh Kaur, was described by Nirmal Singh, respondent No. 1 (plaintiff therein), as his father's sister (Bua). He further submitted that this assertion of Nirmal Singh, respondent No. 1, made in the plaint of the previous suit, was false, to his knowledge. He further submitted that even, in the plaint of the previous suit, Nirmal Singh, respondent No. 1, averred that, a family settlement took place, between him and Lekh Kaur, which fact, was false, to his knowledge. He further submitted that Lekh Kaur, came to know, on 06.11.98 of the judgement and decree dated 02.06.84, when Nirmal Singh, respondent No. 1, filed a reply, in the application instituted by her for partition, under Section 111 of the Punjab Land Revenue Act, in the Court of Assistant Collector 1st Grade, Malerkotla. He further submitted that, thus, the suit, was filed, within the period of limitation. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, submitted that Lekh Kaur, appellant, is the father's sister (Bua) of Nirmal Singh, respondent No. 1. He further submitted that, thus, there was a legal and valid family settlement, between them, before the RSA No. 1967 of 2008 8 decree dated 02.06.84, was passed. He further submitted that, thus, the judgement and decree only acknowledged the pre-existing right, in favour of Nirmal Singh, respondent No. 1, in pursuance of the family settlement, and did not create right and interest, in the immovable property, in his favour, worth upwards Rs. 100/-, for the first time. He further submitted that the Courts below, on correct reading and due appreciation of evidence, rightly passed the judgement and decree dated 02.06.84, in favour of Nirmal Singh, respondent No. 1. He further submitted that the judgement and decree dated 02.06.84, did not require registration. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be accepted, for the reasons to be recorded, hereinafter. It is, no doubt, true that, this Court, in the Regular Second Appeal, cannot interfere with the findings of fact, recorded by the Courts below, until and unless, it comes to the conclusion, that the same are the result of misreading or misappreciation of evidence or contrary to the settled position of law. The first question, that arises for consideration, is, as to whether, Nirmal Singh, respondent No. 1 (plaintiff in the earlier suit), was a member of the family of Lekh Kaur, appellant, and, as such, there was a legal and valid family settlement, between them. No doubt, Nirmal RSA No. 1967 of 2008 9 Singh, respondent No. 1, claimed that, Lekh Kaur, appellant, is his father's sister (Bua), yet this claim, made by him, is nothing but a tissue of lies. In the written statement of the suit, out of which, the instant appeal, has arisen, the pedigree table, was depicted by Nirmal Singh, defendant (respondent No. 1), which is extracted as under:- Attar Singh Ran Singh | | ------------------------------------------- ------------------------------------ | | | | Anokh Singh @ Tehal Singh Kahla Singh Nikka Singh Harbhajan Singh | | | | ------------------------------------------- ------------------------------------ | | | | Dharam Singh Hardit Singh Lekh Kaur Gurbachan | Singh ----------------------------------------------------------------- | | | Dr. Gurdeep Singh Nirmal Singh Kuldip Singh 13. It is evident, from the pedigree table, depicted above, that Lekh Kaur, is not the sister of the father of Nirmal Singh, respondent No. 1. On the other hand, Lekh Kaur, as per this pedigree table, is shown to be distantly related to Nirmal Singh,respondent No. 1. Nirmal Singh, respondent No. 1, is the descendant of Attar Singh, and Lekh Kaur, is the descendant of Ran Singh. No doubt, Attar Singh and Ran Singh, have been shown to be the brothers. Lekh Kaur, is shown to be the daughter of Kala Singh, whereas, Nirmal Singh, respondent No. 1, is shown to be the son of Hardit Singh. Hardit Singh, is shown to be the grand-son of Attar Singh. Nirmal Singh, is the great grand-son of Attar Singh, whereas, Lekh Kaur, is shown to be the grand-daughter of Ran RSA No. 1967 of 2008 10 Singh. By no stretch of imagination, it, could be said, that Lekh Kaur, is the father's sister of Nirmal Singh, respondent No. 1, and, as such, is related, to him as Bua. Nirmal Singh, respondent No. 1, was certainly not a member of the family of Lekh Kaur, and, as such, the question of any legal and valid family settlement, between them, did not at all arise. No doubt, in the plaint of the previous suit, it was stated, that there was a legal and valid family settlement. The date, month, and the year, when the alleged family settlement took place, were not mentioned, in the plaint of the previous suit. Even, no independent evidence, was led, by Nirmal Singh, respondent No. 1, as to, on which date, month, and year, the alleged family settlement took place, between him, and Lekh Kaur; which other members,were present, at the time of the alleged family settlement; what was the dispute, between the parties; what were the terms and conditions of the alleged family settlement; and what was given by Nirmal Singh, respondent No. 1, to Lekh Kaur, in lieu of the land, allegedly given, to him, in the aforesaid family settlement by her. Nirmal Singh, respondent No. 1, himself, did not appear, as his own witness. Nirmal Singh, respondent No. 1, was a practicing lawyer, in the Courts at Malerkotla, at the time, the alleged decree dated 02.06.84, was passed. No doubt, Tarlochan Singh, DW1, during the course of his cross-examination, stated that, there was a family settlement, between the parties. He, however, in the same breath, stated that, it did not take place, in his presence, but, in the presence of his father, who told him RSA No. 1967 of 2008 11 about the same. He further stated that his father had demised. He further stated that, no writing, was executed, in respect of the said family settlement. Gurbachan Singh, DW2, brother of Lekh Kaur, however, stated, in his examination-in-chief, by way of affidavit, that there was family settlement, between her and Nirmal Singh, respondent No. 1, in January, 1984. During the course of his cross-examination, he stated that Jaggar Singh, Namberdar, was present, at that time. He further stated that a writing, was executed, in respect of the said family settlement. This writing, was made, on a stamp paper. He further stated that the document, was scribed, by a Deed Writer, and, he made an entry thereof, in his register. He further stated that, even the Patwari, was informed of the family settlement. However, the document alleged to have been scribed by a Deed Writer, in respect of the alleged family settlement, never saw the light of the day. In other words, it was not produced, on record. This clearly goes to show, that the statement of Gurbachan Singh, DW2, to the effect, that a family settlement, took place, is totally false. What prevented him, from producing the document, is not known. He did not furnish any explanation, in that regard. Raja Singh, DW3, attorney of Nirmal Singh, respondent No. 1, however, stated that, no writing, was executed, in respect of the family settlement. Even the alleged family settlement, did not take place, in his presence. The statement of Raja Singh, DW3, that no document, was executed, at the time of the alleged family settlement, is contradictory to the statement of Gurbachan Singh, DW2. From their statements, it RSA No. 1967 of 2008 12 was not at all proved, that any alleged family settlement, took place, between the parties, as a result whereof, the land, in dispute, was given to Nirmal Singh, respondent No. 1, by Lekh Kaur. The mere assertion, in the plaint of the previous suit, that there was a family settlement, between the parties, without substantiation, through any cogent and convincing evidence, was hardly of any consequence, to prove this factum. The story set up by Nirmal Singh, respondent No. 1, in the plaint of the previous said, that there was a family settlement, between him, and Lekh Kaur, was nothing, but a concoction of lies. The Courts below, on account of complete misreading and misappreciation of evidence, as also against settled principles of law, came to the conclusion, that there was a legal and valid family settlement, between Lekh Kaur and Nirmal Singh, respondent No. 1, as a result whereof, he had pre-existing right, in the property, in dispute. The findings of the Courts below, in this regard, being perverse, are liable to be set aside. 14. Once, it has been held, that there was no legal and valid family settlement, between Nirmal Singh, respondent No. 1, on the one hand, and Lekh Kaur, appellant, on the other hand, and he had no pre- existing right, in the property, in dispute, the next question, that arises for consideration is, as to whether, the judgement and decree dated 02.06.84, created right, in the immovable property, worth more than Rs. 100/-, for the first time, in favour of Nirmal Singh, defedendant No. 1, and as such, for want of registration, could not be acted upon. Sub Section (1) of Section 17 of the Act, specifies the RSA No. 1967 of 2008 13 documents, of which, registration is compulsory; clauses (b), (c) and (e) whereof, read as under:- “17- Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situated in a district in which, and if they have been executed on or after the date on which, Act. No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:- (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property: Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in RSA No. 1967 of 2008 14 any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.” “Sub Section (2) of Section 17 of the Registration Act, 1908, however, carves out an exception therefrom, stating that, nothing in clauses (b) and (c) of Sub Section (1) of Section 17, would inter-alia apply to “any decree of order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other hand that which is the subject matter of the suit or proceeding.” 15. Since the decree amounted to transferring right and title, in favour of Nirmal Singh, respondent No. 1, for the first time, in the immovable property, worth more than Rs. 100/-, in view of the provisions of Section 17 of the Registration Act, extracted above, the same required registration. In Bhoop Singh Vs. Ram Singh Major and others, AIR 1996 (SC), 196, the principle of law, laid down, was to the effect, that the exception engrafted to Clause (vi) of Section 17 (2) 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. The Court should, therefore, examine in each case, whether the parties have pre-existing right to the immovable property, RSA No. 1967 of 2008 15 or whether, under the order or decree of the Court, one party having right, title or interest therein, agreed 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 the other party, for the first time, either by compromise or pretended consent. If the latter be the position, the document is compulsorily registrable. Similar principle of law, was laid down, in K. Raghunandan & others Vs. Ali Hussain Sabir and others, 2008(3), RCR (Civil), 699 (SC), Brij Lal and another Vs. Smt. Pari Devi and others, 2004(2), RCR (Civil), 536, Nachhattar Singh and another Vs. Jangir Singh and others, 2005(1), RCR (Civil), 777, and Ajay Chaudhary Vs. Santosh Kumar and another, 2004(1), RCR (Civil), 807. The Courts below, were, thus, wrong in holding, that the decree dated 02.06.84, did not create right and title, in Nirmal Singh, respondent No. 1, for the first time, in the immovable property, worth more than Rs. 100/-, and did not require registration. The findings of the Courts below, to this extent, being perverse and illegal, are liable to be set aside. 16. The Counsel for Nirmal Singh, respondent No. 1, however, placed reliance, on Bachan Singh Vs. Kartar Singh and others, 2002 (3), RCR (Civil), 495 (SC), Mukanda Vs. Kura Ram and others, (2003-2), PLR, 198, and Jagdish and others Vs. Ram Karan and others, (2003-1), PLR, 182, in support of his contention, that since the decree, was passed, on the basis of family settlement, having been arrived at, to the filing of the earlier suit, between the parties, and there was pre-existing right, in favour of Nirmal Singh, respondent No. 1, in RSA No. 1967 of 2008 16 the property, in question, the same did not require registration. In Bachan Singh's case (supra), the consent decree, was passed, in favour of the plaintiff, where he (plaintiff), had claimed perfection of title, by virtue of adverse possession. It was an admission of right of adverse possession, by the defendant, in favour of the plaintiff. The right