RSA No. 3588 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3588 of 1985 Date of decision: August 1, 2011 Smt. Devi Bai ...Appellant Versus Gurdial alias Gura through LRs and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Ashwani Talwar, Advocate, for for the appellant. Mr. R.C. Setia, Senior Advocate with Mr. Vishal Ranjan, Advocate, for respondents No. 1 to 5. GURDEV SINGH, J. The appellant/plaintiff, Smt. Devi Bai, has preferred this second appeal against the judgment and decree dated 14.9.1985 passed by the Additional District Judge, Hisar, vide which he dismissed the first appeal preferred by her against the judgment and decree dated 17.3.1982 passed by the Sub Judge Ist Class, Fatehabad, dismissing her suit for declaration to the effect that the judgment and decree dated 13.8.1973 got passed by respondents/defendants in their favour in respect of the land in dispute measuring 70 kanals 2 marlas situated in the area of village Madh, Tehsil Fatehabad, District Hisar, fully detailed in para No.1 of the plaint, is illegal, null, void and ineffective and not operative qua her rights in that land and for possession of that land. RSA No. 3588 of 1985 2 The case of the plaintiff, as pleaded in the plaint, is that the land in dispute was originally owned by her mother Smt. Tikan Bai and the same was inherited by her on the basis of the Will dated 19.6.1970 which was registered in the office of Sub-Registrar Gohana on 20.6.1970. She had empowered her husband Shri Shiv Dayal to look after the land and never authorized him to alienate, transfer or sell the same. Both of them are simple persons, whereas the defendants are cunning and sort of touts. They filed the suit for declaration on the basis of the possession in the Court of the Sub Judge IInd Class, Fatehabad on 28.7.1973 and obtained the decree dated 13.8.1973 on the basis of fraud and forgery. She was never served in the suit and the proceedings were kept secret. She had no knowledge of the pendency of their suit. Her husband never appeared in that Court. In fact, they took some person to the Court and by impersonating him as her attorney got the decree on the basis of forged compromise. No such statement was ever made by her attorney in the Court on 13.8.1973 and nor any written statement was filed. No consideration was ever received by her attorney. In case it is proved that he appeared in the Court as her attorney and put his signatures on the compromise or made statement in the court, then she in alternate pleads that he colluded with the defendants because he had no authority to sell, transfer or alienate the suit land. He could not have entered into such a compromise and the decree is liable to be set aside on the basis of collusion. Even the counsel on her behalf was engaged by the defendants, whose counsel was closely related to that counsel. She also pleaded that defendants No. 1 to 5 were in cultivating possession of the land in dispute as tenants on the payment of 1/3rd of the produce of that land. The suit was contested by the defendants. In their written RSA No. 3588 of 1985 3 statement, they admitted passing of the decree dated 13.8.1973 in their favour and that they are coming in possession of the land in dispute. They denied other contentions made in the plaint and, inter-alia, pleaded that the Will dated 19.6.1970 was never executed by Tikan Bai in favour of the plaintiff with her free consent and is illegal. Mutation was got wrongly sanctioned on the basis of that Will. The plaintiff by executing general power of attorney had authorized her husband Shiv Dayal to transfer or alienate the land in dispute and to enter into compromise etc. on her behalf. The plaintiff duly received the summons on 31.7.1973, which was for filing of written statement. They had pleaded correct facts in the suit filed by them. She had borrowed Rs. 19500/- from them and it was in lieu of that money that she got transferred the land in dispute in their favour, through her attorney, on the basis of the compromise. Her attorney came present in the Court on 13.8.1973 and filed the compromise through his counsel Shri C.P. Mehta, Advocate, Fatehabad, and the decree was passed on the basis of that compromise. The plaintiff has no locus standi to file the suit and she is estopped from filing the same by her own act and conduct. The plaint is vague as no particulars of the fraud have been given therein. The suit is barred by time also. They prayed for dismissal of the suit with special cost under Section 35-A of the CPC; being false and frivolous to the knowledge of the plaintiff. In replication to the written statement, the plaintiff denied all the contentions raised therein and reiterated her contentions made in the plaint. On the pleading of the parties, the following issues were framed by the trial court:- RSA No. 3588 of 1985 4 “1. Whether the decree of the civil court dated 13.8.1973 in favour of defendants No.1 to 5 is illegal, null and void, obtained through fraud, mis-representation and is liable to be set aside, for the reasons given in the plaint ? OPP 2. Whether the plaintiff is the owner of the suit land, as alleged in the plaint ? OPP 3. Whether the suit of the plaintiff is within limitation ? OPP 4. Whether the suit is not maintainable in the present form ? OPD 5. Whether the plaintiff has no locus standi to sue ? OPD 6. Whether the plaintiff is estopped by her acts and conduct to sue ? OPD 7. Whether the suit is collusive between the plaintiff and defendants No. 6, if so, its effect ? OPD 8. Whether the plaint is not properly verified and signed by the plaintiff ? OPD 9. Whether the plaint is vague as given in detail in preliminary objection No. 2 of the written statement, if so, its effect ? OPD 10. Relief.” To succeed in the suit, the plaintiff examined herself as PW-1, Kartar Singh (PW-2), Chaman Lal (PW-3), Atma Ram (PW-4), Mrs. R.K. Vij, Handwriting and Finger Print Expert (PW-5) and P.N. Mehta, Advocate (PW-6). On the other hand, the defendants examined Dewan Chand (DW- 2), Om Parkash Mehta (DW-3), Chandu Ram (DW-4), Dhalu Ram (DW-5), RSA No. 3588 of 1985 5 Ram Ditta (DW-6), Sat Pal (DW-7), Narain Dass (DW-8), Chaman Lal, Petition Writer (DW-9), Bal Krishan (DW-10), Shiv Dayal (DW-10). Gurdial-defendant No.1 himself entered the witness box as DW-1. After going through that evidence and hearing learned counsel for both the sides, the learned trial court decided issues No. 1 to 3, 6 and 7 against the plaintiff and other issues in her favour and resultantly dismissed the suit. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the plaintiff that the findings recorded by the lower courts that the suit of the plaintiff is barred by time and that the compromise was duly entered into between the parties and the decree was correctly passed on the basis of that compromise are perverse and are the result of misreading of the evidence. It stands proved from the evidence produced on the record that the power of attorney of the plaintiff never appeared in the Court nor made any statement, nor had the authority to make any such statement or enter into the compromise on behalf of the plaintiff. Therefore, no decree could have been passed on the basis of such compromise or admission. Moreover, such decree requires compulsory registration as the defendants had no pre-existing right therein. The decree was never got registered and, as such, the same is liable to be set aside. According to him, the following substantial questions of law arise in the present appeal:- 1. Whether the findings of the lower courts, which are against the plaintiff, are perverse and are the result of misreading of evidence ? 2. Whether the suit of the plaintiff is barred by limitation ? RSA No. 3588 of 1985 6 3. What is the effect of non-registration of the decree under the Registration Act ? On the other hand, it has been submitted by the learned counsel for the defendants that the concurrent findings of facts have been recorded by the lower courts against the plaintiff, which cannot be re-opened in the second appeal. There are concurrent finding of facts that the plaintiff had appointed her husband Shiv Dayal as her attorney and had authorized him to alienate/transfer the land in dispute and to enter into the compromise on her behalf and that he appeared in the Court with his counsel and after he admitted the claim of the defendants in the suit filed by them against the plaintiff, the suit was decreed. A categorical finding has been recorded by both the courts below that the suit was not filed within the period of three years and, as such, is barred by limitation. There was no such law at the time of passing of the decree that the same requires compulsory registration. The law laid down in the subsequent rulings cannot be applied to the facts of the present case. According to him, there is no such substantial questions of law which arise in the present appeal. After having gone through the pleadings of the parties and the evidence produced by them, with the help of their counsel, I have come to the conclusion that the findings recorded by the lower courts are not perverse nor are based on misreading of the evidence. Therefore, those findings cannot be interfered in this second appeal. The only substantial question of law, which can be said to have arisen in the present appeal is, whether the decree in question was compulsorily registrable or not ? In support of his contention, learned counsel for the plaintiff has relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1996 Supreme RSA No. 3588 of 1985 7 Court 196 (1) (Bhoop Singh v. Ram Singh Major and others). It was held therein that if a right is created by a compromise decree or is exstinguished, it must compulsorily be registered. It was held by a Division Bench of this Court in Gurdev Kaur and others versus Mehar Singh and others 1989 PLJ 182, that the compromise decree regarding immovable property, which is the subject matter of the suit, does not require registration, even if the title is created in favour of the decree-holder for the first time under the decree, whether with consideration or without consideration. Thus, at the time the decree in question was passed, there was no such law declared by the Hon'ble Apex Court or by this Court that such decree requires compulsory registration. Moreover, this plea was never taken up by the plaintiff in her plaint. Therefore, it cannot be said that at the time the decree was passed, it required compulsory registration. Therefore, this question is decided against the plaintiff and the appeal is hereby dismissed. Records of the lower court be returned forthwith. August 1, 2011 (GURDEV SINGH ) prem JUDGE