R.S.A.No. 803 of 1986(O&M) -1- In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 803 of 1986(O&M) Date of Decision: July 25, 2011 Banta Singh ---Appellant versus Pakhar Singh and others ---Respondents Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr. IPS Doabia, Advocate, for the appellant *** Gurdev Singh, J. The appellant-defendant No. 1, Banta Singh, has preferred this second appeal against judgment and decree dated 12.2.1986 passed by Additional District Judge, Ferozepur, vide which he dismissed the first appeal preferred by that defendant against the judgment and decree dated 8.2.1985 passed by Additional Senior Sub Judge, Zira, decreeing the suit of the respondents-plaintiffs for declaration to the effect that they were the owners in joint possession of the land in dispute, situated in village Zaner, Tehsil Zira, as fully detailed in the heading of the plaint. The parties are related to each other as brothers. They had one other brother; named, Issar Singh and one sister, Jawali, who was impleaded as defendant No. 2. The suit was filed by the plaintiffs in respect of 1/4th share of Issar Singh, in the land in dispute. They pleaded in their plaint that Issar R.S.A.No. 803 of 1986(O&M) -2- Singh was unmarried and died issueless. After his death, his 1/4th share devolved upon them and defendant No. 1 in equal shares. However, Mutation No. 2860, regarding the inheritance of Issar Singh was entered in the name of that defendant, on the basis of the forged Gift Deed dated 5.11.1958. During the mutation proceedings, Jawali-defendant No. 2 relinquished her claim in the estate of Issar Singh and they entered into a compromise and on the basis of that compromise, the mutation was sanctioned in their favour and they became the owners of the share of Issar Singh in the land in dispute in equal shares. Thus, they became the owners in possession of 2/3rd share and Banta Singh- defendant became owner in possession of the remaining 1/3rd share. That defendant filed an application under Section 111 of the Punjab Land Revenue Act for partition of suit land describing himself to be owner of ½ share. That application was dismissed in default. Thereafter, they obtained the copies of the revenue documents consisting of the jamabandi and mutation order. It was only thereafter that they came to know that the share of Issar Singh in the land in dispute had been mutated only in favour of defendant No. 1. The same necessitated the filing of the suit for declaration. Defendant No. 1 contested their claim. In his written statement he admitted that he along with the plaintiffs and Issar Singh, was owner of the land in dispute in equal shares and that Issar Singh had not married during his life time and died issueless. He denied the other contentions of the plaintiffs and inter alia pleaded that he is youngest amongst all the brothers and their parents died when he was hardly 3-4 years old. He was brought up by Issar Singh and even his marriage was performed by him. They had been living jointly whereas the plaintiffs were separate from them. Issar Singh was unmarried and brought him up as a son and he had been serving him in his old age. As a result of that, Issar Singh executed Gift Deed on 5.11.1958 thereby, R.S.A.No. 803 of 1986(O&M) -3- gifting his share in the land in dispute in his favour. That Gift Deed was accepted by him by putting a thumb mark on the endorsement of the Sub Registrar, Zira, at the time of registration thereof. He also took into possession of the share of Issar Singh in pursuance of that Gift Deed. The plaintiffs had full knowledge about this Gift Deed and on the basis thereof, he became the exclusive owner of the share of Issar Singh. It was on the basis of that Gift Deed that the mutation was sanctioned in his favour to the exclusion of the plaintiffs and their sister, Jawali-defendant No. 2. That mutation was given due effect in the jamabandis. The plaintiffs have no locus standi to file the suit and the same is bad for non-joinder of Jawali as a party. He is coming in joint possession of the land in dispute since the date of Gift Deed and, as such, the suit is barred by limitation. The plaintiffs are estopped from filing this suit by their act, conduct and acquiescence. On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether Issar Singh gifted his share in the suit land to Banta Sing defendant through gift deed dated 5.11.1958 ? 2. If issue No. 1 is proved whether there was compromise between the parties for getting the mutation of inheritance of Issar Singh sanctioned in favour of Pakhar Singh, Santa Singh and Banta Singh in equal shares ? If so, its effect ? OPP 3. Whether the suit is within limitation? OPP 4. Whether the plaintiffs are estopped by their act, conduct and acquiescence from filing the suit ?OPD 5. Relief. To succeed in the suit, the plaintiffs examined Jawali, PW-2 and Pakhar Singh, plaintiff No. 1, himself entered the witness box as PW-1. On the R.S.A.No. 803 of 1986(O&M) -4- other hand, the defendant examined himself as DW-3, Babu Ram, Deed Writer, DW-1, Ganda Singh-DW-2 and Satwant Puri, Document Expert, DW-4. After going through that evidence and hearing learned counsel for both the sides, the learned trial court decided Issue No. 1 in favour of the defendant and other issues in favour of the plaintiffs and resultantly, decreed their suit. I have heard learned counsel for appellant-defendant. It has been submitted by learned counsel for the defendant that the following substantial question of law arises in the present appeal:- “Whether the title could have been created in favour of the plaintiffs in respect of the share of Issar Singh in the land in dispute on the basis of the order passed by Revenue Officer on the basis of the compromise, alleged to have been entered into between the parties, in the absence of the registration of that order under the Indian Registration Act?” He contended that the mutation had already been sanctioned in favour of the defendant on the basis of the Gift Deed, Ex. D-1, which was duly executed in his favour by Issar Singh and was accepted by him. The title in the share of Issar Singh passed in favour of the defendant on the basis of that gift deed. As the compromise alleged to have been effected between the parties divested him of that right, so, the order of the Revenue Officer, passed on the basis of that compromise, requires compulsory registration and in the absence thereof, that order cannot be said to have the effect of passing title in the share of Issar Singh in favour of the plaintiffs. In support of his submission, he has placed reliance on AIR 1996 SC 196(1) (Bhoop Singh v. Ram Singh Major and others). A finding of fact was recorded by the trial court that during the mutation proceedings, the parties to the present suit appeared and Jawali- R.S.A.No. 803 of 1986(O&M) -5- defendant No. 2 stated that she had no objection in case the estate of Issar Singh was mutated in favour of the present plaintiffs and Banta Singh- defendant, in equal shares and that they, on the basis of the written compromise, agreed that the mutation be sanctioned in their favour regarding the inheritance of the estate of Issar Singh, in equal shares. That finding was upheld by the first appellate court and has not been challenged before this Court and rightly so as that concurrent finding of fact cannot be challenged in the second appeal. The legal position qua Clause (vi) of Section 17(2) of the Registration Act was summarised as under in Bhoop Singh's case (supra):- (1)Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp and frustrate the law relating to registration, would not require registration. (2)If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100/- upwards in favour of any party to the suit, the decree or order would require registration. (3)If the decree were not to attract any of the Clauses of sub- section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court”s cases, it is apparent that the decree would not require registration. (4)If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of compromise in question. (5)If the property dealt with by the decree be not the “subject R.S.A.No. 803 of 1986(O&M) -6- matter of the suit or proceeding”, Clause (vi) of sub -section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.” I do not find any merit in the contention of the learned counsel for the defendant that by means of the order passed on the basis of compromise, the defendant was being divested of the title in the share of Issar Singh. The plaintiffs never accepted the Gift Deed and according to them, the same was a fabricated document and defendant agreed to ignore the same. No right came to be created for the first time by means of the compromise or the order passed by the Revenue Officer. It was just a settlement amongst the real brothers and the same is to be termed as family settlement. It has recently been held by the Apex Court in Ganeshi vs. Ashok and another 2011 (2) Apex Court Judgments 276 (S.C.) that a family settlement is not a transfer of property, if the same is entered into bona fidely in order to avoid the family dispute. Therefore, I am not inclined to entertain the contentions raised by counsel for the defendant. The above said substantial question of law is answered against the defendant. There is no merit in this appeal and the same is hereby dismissed. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE July 25, 2011 PARAMJIT Whether to be referred to the Reporter? Yes/No