R.S.A. No. 1686 of 2006 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1686 of 2006 (O&M) Date of Decision : 26.3.2009 Rajender & others .......... Appellants Versus Smt. Badama & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Jagat Singh, Advocate for the appellants. Mr. Vinod S. Bhardwaj, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 21.11.2003 and 16.12.2005 passed by the learned Courts below vide which suit filed by the plaintiff / appellants for declaration claiming themselves to be owners in possession of land measuring 155 Kanals-15 Marlas by virtue of judgment and decree dated 27.7.1990 stands dismissed. It was claimed that defendant / respondents had no concern with the land in dispute and the decree dated 28.11.1990 was wrong, against law and facts and that the mutation sanction on the basis of said decree was also illegal thus liable to be set aside. The pleadings in short are that Sardara sold land measuring 150 R.S.A. No. 1686 of 2006 2 Bighas by way of sale deed dated 16.2.1966 in favour of Partap, Rama Nand and Net Ram. The sale by Sardara was challenged by his son Sultan seeking possession by way of pre-emption. However, during the pendency of the suit for pre-emption Net Ram sold his share in favour of Partap i.e. the predecessor in interest of the plaintiff / appellants. By way of sale deed dated 13.12.1966. The suit for pre-emption was dismissed. The appeal also met with the same fate. However, Sultan Singh challenged the judgment and decree of the learned lower Courts declining his prayer for possession by pre-emption in regular second appeal. The regular second appeal was partly accepted and the suit was decreed qua 1/3 share of the land whereas suit qua 2/3 share was ordered to be dismissed. The judgment and decree passed by this Court in regular second appeal was challenged by both the parties before the Hon'ble Supreme Court and the matter was compromised between the parties. In terms of the com promise, on receipt of a sum of Rs. 38,000/- by Sultan Singh his suit for pre-emption was to be dismissed. After compromise of the suit Sh. Net Ram challenged the sale deed executed by him in favour of Partap Singh by claiming it to be sham transaction and not binding on his rights of ownership. The suit was filed on 28.1.1988. However, during the pendency of the suit Partap Singh suffered a decree in favour of the appellants / plaintiff on 27.7.1990. After he suffered consent decree in favour of his sons he suffered a compromise R.S.A. No. 1686 of 2006 3 decree in favour of Net Ram in suit filed to challenge sale. The plaintiffs by claiming themselves to be owner in possession of the land in dispute on the basis of the decree suffered in their favour by Partap Singh filed present suit. The suit was contested primarily on two grounds. Firstly, that the suit was not competent as it was not open to the plaintiff / appellants to challenge a compromise decree by way of separate suit, and secondly that the decree in favour of the plaintiffs / appellant was hit by the principle of lis pendens. The learned Courts below have decided both these points in favour of the defendant / respondents and dismissed the suit. The learned counsel appearing on behalf of the appellants contends that appeal raises the following substantial questions of law for consideration by this Court :- i) Whether the learned Courts below have committed error of law by misinterpreting the terms of compromise arrived at in Civil Appeal No. 1065 of 1984 decided on 29.10.1984 by the Hon'ble Supreme Court of India ? ii) Whether the Courts below have committed error of law by arriving at the findings of facts that Net Ram and his legal heirs are in possession of the property on the basis of wrong and erroneous interpretation of documents Ex. D to D ? R.S.A. No. 1686 of 2006 4 iii) Whether the learned Courts below have committed error of law by giving findings of fact against the appellants that the sale deed dated 13.12.1996 executed by Net Ram is a sham transaction and the findings are not based on any evidence or cogent reasons ? iv) Whether the learned Courts below have committed error of law by giving a finding of fact that Net Ram had paid a sum of Rs. 19,000/- at the time of compromise before the Hon'ble Supreme Court and the same is perverse ? v) Whether the findings of fact recorded by the learned Courts below are totally wrong and perverse and are not based on any evidence on record ? vi) Whether the learned Courts below have committed error of law by recording a finding that the judgment and decree passed in Civil Suit No. 746 of 1990, decided on 27.7.1990 is hit by rule of lis- pendens and is null and void ? vii) Whether the judgment and decree passed in Civil Suit No. 746 of 1990 decided on 27.7.1990 has not created any rights in the property in favour of the appellants and has simply affirmed the earlier rights of the appellants in the property ? R.S.A. No. 1686 of 2006 5 viii) Whether the judgment and decree passed in Civil Suit No. 129 of 1988 is totally wrong and illegal and is based on fraud and the findings recorded by the learned Courts below contrary to it, is totally wrong, illegal and perverse ? ix) Whether the learned Courts below have taken a totally wrong approach to the entire matter on record and the impugned judgments and decree are not sustainable in the eyes of law ? x) Whether the provisions of Prohibition of Benami Transaction Act 1984 are applicable in the present case and the legal heirs of Net Ram cannot claim any rights in the property ? xi) Whether the findings recorded by both the Courts below are not sustainable in the eyes of law and are liable to be set aside ? Though most of the points raised can not be said to be substantial question of law , the arguments raised are being answered hereafter. In support of the first substantial question of law the learned counsel for the appellant contends that the learned Courts below have misinterpreted the terms of the compromise between the parties that is defendant / respondent and Pratap, predecessor-in-interest plaintiff. The contention of the learned counsel for the appellants is that once the matter stood compromised before the Hon'ble Supreme Court it R.S.A. No. 1686 of 2006 6 was not open to the parties to challenge the compromise before the Subordinate Court or enter into fresh compromise which was contrary to agreement before the Hon'ble Supreme Court. However, I find no force in the contention raised by the learned counsel for the appellants. Before the Hon'ble Supreme Court the compromise entered into between the parties was that the parties would pay a sum of Rs. 38,000/- to Sultant Singh i.e. the son of Sardara as consideration for dismissal of his suit for pre-emption. That said compromise stands fully implemented and the suit filed by Sultan Singh was dismissed, therefore, it cannot be said that the learned Courts below have misinterpreted the compromise entered into between the parties as contended by the learned counsel for the appellants as the said compromise was not even remotely connected with issue in present case. On the second substantial question of law the learned counsel for the appellants contends that the learned Courts below committed an error of law by recording a finding that Net Ram and his legal heirs are in possession of the property by wrongly interpretation of documents Ex. D to D. However, this contention of the learned counsel for the appellants is liable to be rejected as the plaintiffs / appellant himself does not know as to which documents are to have been misinterpreted. Even otherwise it is not open to the plaintiffs to challenge the finding by way of separate suit as the suit filed by Net Ram was decreed on the basis of compromise and the said decree could not be challenged by way of separate suit, as remedy, if any, with the plaintiff / appellants was to move to the same Court and not to file a separate suit in view of provisions R.S.A. No. 1686 of 2006 7 of Order 23 which bar separate suit to challenge compromise. In support of the third substantial question of law the learned counsel for the appellants contends that the learned Courts below have committed an error in recording a finding that the sale deed dated 13.12.1966 executed by Net Ram was a sham transaction as the findings are not based on any evidence on record, therefore, the contention of the learned counsel for the appellants is that the judgment and decree passed by the learned Courts below being perverse in law deserves to be set aside. This contention of the learned counsel for the appellants is totally misconceived. The fatum that sale deed was bad in law stands admitted by Partap Singh by entering into a compromise vide which he agreed that the sale deed to be set aside, as already observed, earlier the suit filed by the plaintiffs / appellant was not competent as no suit to challenge the compromise decree is competent. It cannot be disputed that the plaintiff / appellants are drawing their title from Partap Singh on the basis of decree said to have been suffered in their favour during the pendency of the litigation. This substantial question of law therefore also deserves to be answered against the appellants / plaintiff by holding that it was not open to the appellant / plaintiff to challenge decree by way of separate suit once a compromise decree was passed. On the fourth substantial question of law the learned counsel for the appellants contends that the findings recorded by the learned Courts below is outcome of misreading of evidence, in holding that Net Ram paid a sum of Rs. 19,000/- before the Hon'ble Supreme Court and, thus, perverse. R.S.A. No. 1686 of 2006 8 The contention of the learned counsel for the appellants is, that it is admitted case that no money was paid by Net Ram, the Hon'ble Supreme Court and total consideration of Rs. 38,000/- was paid by Partap Singh and Rama Nand. This plea also cannot be accepted as it is not a substantial question of law, required to be considered in the present appeal. The Courts below non-suited the plaintiff / appellants by holding that the suit filed by the plaintiff / appellants was not competent as they could not challenge the decree suffered by Partap Singh by way of compromise by relying on the law laid down by the Hon'ble Supreme Court in the case of Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another AIR 1993 Supreme Court 1139 . In support of the fifth substantial question of law the learned counsel for the appellants contends that finding of fact recorded by the learned Courts below are totally wrong, perverse, and not based on any evidence. This plea is also totally misconceived as already observed above. The decision of learned Courts below, non-suiting plaintiff / appellant is based on settled law. Otherwise also on the facts pleaded by the plaintiff / appellants, without even looking at evidence it can safely be said that the suit filed by the plaintiff /appellants was not competent as plaintiffs could not challenge the compromise decree by way of separate suit, therefore, the contention of the learned counsel for the appellant, that the judgment and decree is perverse and not based on any evidence deserves to be rejected. On sixth substantial question of law the learned counsel for the appellants contends that the learned Courts below were wrong in holding R.S.A. No. 1686 of 2006 9 that the decree in favour of the plaintiff / appellants was hit by the principle of lis pendens and thus null and void. The learned counsel for the appellants contends that the decree in favour of the appellants / plaintiff was passed in the month of July, 1988 i.e. prior to the compromise decree, therefore the finding of the learned Courts below cannot be sustained. This again is misconceived contention of the learned counsel for the appellants. It is not in dispute that the suit was filed by the defendant / respondents in January 1988 against Partap and it was during pendency of that suit, father of the plaintiff / appellants suffered a consent decree in favour of the appellants / plaintiff thus, the learned Courts below rightly held that the decree did not affect the rights of the defendant / respondents. The consent decree in favour of plaintiffs was hit by the principle of lis pendens being an attempt to defeat the rights of the defendant / respondents. On seventh substantial question of law the learned counsel for the appellants contends that the decree passed in favour of the defendants / respondents was bad for want of registration as by way of compromise the rights in favour of the respondents were created for the first time and, therefore, it could not pass on any valid title in favour of the defendant / respondents without registration. This contention of the learned counsel for the appellants also deserves to be rejected. It cannot be disputed that Net Ram was owner of the land having purchased the property from Sardara along with Partap. It was by virtue of the sale deed which was challenged that the title of the defendants was under cloud, but by way of compromise, once the sale deed was R.S.A. No. 1686 of 2006 10 set aside the existing rights of the defendant / respondents were restored, therefore it cannot be said that the rights were created in favour of the defendant / respondent for the first time by way of compromise decree as contended. It is well settled that decree of the Civil Court is not required to be registered, and passes a valid title in favour of the decree-holder, unless the rights are created for the first time under the said decree but it is not the situation in the case. The substantial question of law is answered against the appellants. On eighth substantial question of law the learned counsel for the appellants contends that the decree passed in the civil suit No. 129 of 1988 was totally wrong and illegal and is based on fraud, and the findings otherwise are liable to be set aside. This plea is also totally misconceived. This substantial question of law does not arise for consideration in this case. The learned Courts below rightly held that the suit filed by the plaintiffs /appellant to challenge the compromise decree was not competent. It is not understood as to how the decree passed could be said to be based on misinterpretation to treat it to be illegal or perverse. On ninth substantial question of law the learned counsel for the appellants contends that the learned Courts below took totally wrong approach of entire matter, and therefore the judgment and decree passed by the learned Courts below deserves to be set aside. For the sake of repetition it is held again that once the findings recorded by the learned Courts below holding that the suit filed by the R.S.A. No. 1686 of 2006 11 plaintiff / appellants was not competent, since basis of challenge was hit by lis pendens. It is also not understood as to how the substantial question of law raised by the learned counsel for the appellant arise in the appeal. On the tenth substantial question of law the learned counsel for the appellants contends that the claim raised by the successor in interest of Net Ram was hit by the provisions of Prohibition of Benami Transaction Act, 1984. The contention of the learned counsel for the appellants is that once Net Ram claimed that the sale deed made in favour of Partap Singh was without consideration and not meant to transfer the title the transfer was hit by, the provisions of Prohibition of Benami Transaction Act, 1984. The owner is deemed to be owner of the property and thus no decree could be passed in favour of the respondent / defendant. This is again totally a misconceived contention. The decree suffered in favour of the appellants / plaintiff has been challenged to be sham transaction which stands admitted by Partap Singh by way of compromise. It is not open to the plaintiff /appellants who are successor in interest, on the basis of decree suffered from Partap to challenge the decree by way of separate suit as Partap could not challenge the said decree in view of bar under provisions of Order 23 of the Code of Civil Procedure. On eleventh substantial question of law the learned counsel for the appellants contends that the findings recorded by the learned Courts below are not sustainable in the eyes of law and are liable to be set aside. This proposition is not substantial question of law, even otherwise, in view of what has been held above, no argument was addressed on this point to claim that the judgments and decree was against facts. R.S.A. No. 1686 of 2006 12 For the reasons stated above, all the substantial questions of law claimed by the appellants are answered against the appellants. Consequently this appeal is dismissed in limine. 26.3.2009 ( VINOD K. SHARMA ) 'sp' JUDGE