Case: RAVINDER KAUR GREWAL &amp; ORS Vs. MANJIT KAUR &amp; ORS

2. Briefly stated, the suit was filed by the predecessor of the appellants herein - Harbans Singh, son of Niranjan Singh, resident of Sangrur, Punjab against his real brothers Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2) for a declaration that he was the exclusive owner in respect of land admeasuring 11 kanals 17 marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Road and other properties referred to in the Schedule. He asserted that there was a family settlement with the intervention of respectable persons and family members, whereunder his ownership and possession in respect of the suit land including the constructions thereon (16 shops, a samadhi of his wife – Gurcharan Kaur and one service station with boundary wall) was accepted and acknowledged. Structures were erected by him in his capacity as owner of the suit land. It is stated that in the year 1970 after the purchase of suit land, some dispute arose between the brothers regarding the suit land and in a family settlement arrived at then, it was clearly understood that the plaintiff – Harbans Singh would be the owner of the suit property including constructions thereon and that the name of Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2) respectively would continue to exist in the revenue record as owners to the extent of half share and the plaintiff would have no objection in that regard due to close relationship between the parties. However, the defendants raised dispute claiming half share in respect of which Harbans Singh (plaintiff) was accepted and acknowledged to be the exclusive owner and as a result of which it was decided to prepare a memorandum of family settlement incorporating the terms already settled between the parties, as referred to above. The stated memorandum was executed by all parties on 10.3.1988. However, after execution of the memorandum of family settlement dated 10.3.1988, the defendants once again raised new issues to resile from the family arrangement. As a result, Harbans Singh (plaintiff) decided to file suit for declaration on 9.5.1988, praying for a decree that he was the owner in possession of the land admeasuring 11 kanals 17 marlas comprising of khasra Nos. 935/1 and 935/2 situated at Mohalla Road. An alternative plea was also taken that since plaintiff was in possession of the whole suit property to the knowledge of the defendants openly and adversely for more than twelve years, he had acquired ownership rights by way of adverse possession.3. The suit was resisted by the defendants by filing written statement. Harbans Singh (plaintiff) filed replications. On the basis of rival pleadings, the Civil Judge (Junior Division), Sangrur in Suit No. 187/1988 B.T. No. 185 of 18-1-95 (18-1-95) framed following issues: -1.Whether the plaintiff is owner in possession of suit land? OPP2. Whether there was any family settlement between the parties on 10.3.1988 and memo of family settlement was executed by parties on that day? OPP3. Whether the plaintiff constructed shops, a service station and boundary wall around the disputed property? OPP4. Whether the plaintiff has become owner of suit land by adverse possession? OPP5. Whether the property in dispute was purchased out by the income of Joint Hindu Family coparcenary property and construction on the suit land was also purchased by Joint Hindu Family coparcenary property? OPD6. Whether Sohan Singh, Mohan Singh and Harbans Singh constitute a Joint Hindu Family? OPD7. Whether the defendants are estopped from denying the execution of memo of family settlement by their act and conduct? OPPDuring the pendency of the suit, Harbans Singh (plaintiff) expired and, therefore, the appellants herein were brought on record being his legal heirs. The trial Court vide judgment and decree dated 19.1.2000, partly decreed the suit in the following terms: -30. In view of my discussion on various issues above, the suit of the plaintiff partly succeeds and partly fails. Therefore, his suit is decreed partly to the extent that he is declared to be owner in possession of khasra no. 935/1/1/2 (5-18) and to the extent of ½ share in khasra no. 935/1/1/1 (5-19) with construction there upon. Keeping in view the relationship between the parties and the circumstances of the case, no order as to cost. Decree sheet be prepared accordingly. File be consigned to the record room.4. Aggrieved by this decision, the appellants/plaintiffs filed first appeal before the District Judge, Sangrur being Civil Appeal No. 45 of 5-2-2000 B.T. No. 60 of 11-6-2001. The first appellate Court, after reappreciating the pleadings and evidence on record, was pleased to allow the appeal and modify the judgment and decree passed by the trial Court. The first appellate Court declared the original plaintiff as owner of the suit land alongwith constructions including 16 shops, a service station and boundary wall with samadhi in the land. The operative order passed by the first appellate Court, dated 29.11.2003, reads thus: -18. In the light of the above discussion, the appeal is allowed and the judgment passed by the learned trial court is modified and the suit of the plaintiff is decreed. The plaintiff is declared owner of the land measuring 11 kanals 17 marlas comprised in rectangle and killa no. 935/1/1/1 (5-19), 935/1/1/2 (5-18) situated in Mehlan Road, Sangrur along with construction including 16 shops, a service station and boundary wall with samadh in the land. In view of the peculiar circumstances of the case the parties are left to bear their own costs. Decree sheet be prepared and copy of the judgment be placed on the file of the learned trial court and the same be returned immediately to the successor court of Smt. Harreet Kaur PCS, the then Civil Judge (Junior Division), Sangrur. This court file be consigned to the record room.5. The respondent Nos. 1 to 3 being legal representatives of Mohan Singh (original defendant No. 1) preferred second appeal before the High Court being R.S.A. No. 946/2004. The learned single Judge answered the substantial question of law reproduced in paragraph 1 above in favour of the said respondents. The High Court was pleased to set aside the conclusion recorded by the first appellate Court and opined that the document which, for the first time, creates a right in favour of plaintiff in an immovable property in which he has no pre- existing right would require registration, being the mandate of law. Accordingly, the second appeal came to be allowed and the judgment and decree passed by the lower appellate Court was set aside, thereby restoring the decree passed by the trial Court, vide impugned judgment dated 27.11.2007.6. The appellants have questioned the correctness of the view taken by the High Court and in particular, reversing the conclusion reached by the first appellate Court. When the present appeal was taken up for hearing, the Court referred the matter to a larger Bench of three-Judges to answer the question as to whether the acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act, 1963 and is there any bar under the Limitation Act to sue on aforesaid basis in case of infringement of any rights of a plaintiff. The appeal accordingly proceeded before the three-Judge Bench, which in turn answered the said question vide judgment dated 7.8.2019 (Reported as (2019) 8 SCC 729) in favour of the plaintiff. As a result, the matter has been placed before us for consideration of the appeal on its own merits.

Reasoning:
11. It is not in dispute that the parties are closely related. Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2) were real brothers of Harbans Singh (original plaintiff). Original defendant No. 4 – Harjinder Kaur is the wife of Sohan Singh (original defendant No. 2). The father of the plaintiff and defendant Nos. 1 and 2 died during minority of defendant Nos. 1 and 2. The defendants had proved the copy of sale deed dated 16.4.1970 (Exhibit DW-3/A), whereby Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2) purchased land admeasuring 5 kanals 19 marlas comprised in khasra No. 935/1. Harbans Singh (plaintiff) had appeared on behalf of the purchaser at the time of execution of the sale deed. Jamabandi for the year 1984-1985 of the property in dispute (Exhibit D-1) reveals that khasra No. 935/1/1/1 (5-19) shows the name of Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2) as owners, whereas the name of Harbans Singh (plaintiff) is shown against khasra No. 935/1/1/2 (5-18) as owner. Mohan Singh (original defendant No. 1) had stated that the land standing in the name of Harbans Singh (original plaintiff) was purchased by him from the funds of joint family, but that fact has not been proved or established by the contesting defendants. In that sense, it may appear from the revenue record that the concerned parties were owners in respect of separate properties and not as joint owners. The fact remains that Harbans Singh (original plaintiff), Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2) are closely related being real brothers. Further, although the ownership of the suit property recorded in Jamabandi is of concerned defendant, Harbans Singh (plaintiff) had constructed 16 shops, samadhi of his wife – Gurcharan Kaur and a boundary wall on the property and was in possession thereof. Pertinently, the trial Court had opined in paragraph 24 of its judgment that all the three brothers – Harbans Singh (plaintiff), Mohan Singh (original defendant No. 1) and Sohan Singh (original defendant No. 2), as noted in Exhibit P-6, owned various properties, on which possession of Harbans Singh (plaintiff) being the eldest brother is admitted. However, it was a permissive possession. The first appellate Court has also opined in paragraph 16 of the judgment that Harbans Singh (plaintiff) came in possession of the suit property with the consent of the defendants. Notably, this finding of fact has not been disturbed by the High Court. That apart, it is established from the record that plot at Prem Basti belonged to Harbans Singh (plaintiff), which was given to Sohan Singh (original defendant No. 2) after taking possession thereof from Mohan Singh (original defendant No. 1). Further, plot purchased by Harbans Singh (plaintiff) in the name of his son was given to Mohan Singh (original defendant No. 1) and his wife. It has been admitted by DW-1 that later on the said plot was sold to one Surjit Kaur. These facts clearly establish that there was not only univocal family arrangement between the parties, but it was even acted upon by them without any exception. This factual position has not been doubted by the High Court.12. As a matter of fact, the High Court has not bothered to even advert to this aspect, whilst analysing the correctness of the finding of fact recorded by the first appellate Court, which was the final fact-finding Court. From the impugned judgment, it is noticed that after giving the basic facts, the High Court first extracted the relevant portion from the trial Courts judgment (paragraphs 17-21 thereof) and thereafter adverted to the finding and conclusion recorded by the trial Court on other issues. The High Court then went on to extract paragraph 16 of the judgment of the first appellate Court in its entirety, running into about 8 pages and then formulated the substantial question of law. For answering the said substantial question of law, the High Court first adverted to the decision of this Court in Bhoop Singh vs. Ram Singh Major & Ors. (1995) 5 SCC 709    and reproduced paragraphs 12, 13, 16 and 18 thereof. After that, the relevant portion of the decision of the same High Court in the case of Hans Raj & Ors. vs. Mukhtiar Singh (1996) 3 RCR (Civil) 740  (  paragraphs 7 to 9) has been extracted. After doing so, the High Court then referred to the contention of the appellants herein and extracted paragraphs 44 and 54 of the judgment in Hari Shankar Singhania & Ors. vs. Gaur Hari Singhania & Ors. (2006) 4 SCC 658    The High Court then adverted to a decision of the same High Court in Jagdish & Ors. vs. Ram Karan & Ors. PLR (2003) 133 P&H 182 and reproduced paragraph 14 thereof.13. As against this, the first appellate Court thoroughly examined the pleadings and the evidence, oral as well as documentary, placed on record by the concerned parties. In the first place, it examined the question whether the document Exhibit P-6 was executed by the parties or not. After adverting to the relevant evidence, the first appellate Court opined that the trial Court was right in concluding that Exhibit P-6 was executed by the parties referred to therein. That being concurrent finding of fact, needs no further scrutiny. The High Court has not reversed this finding of fact, as is noticed from the extracts of its judgment reproduced above. The first appellate Court then went on to examine whether the document required registration. The High Court has reproduced paragraph 16 of the judgment of the first appellate Court in its entirety. What is relevant to notice is that the first appellate Court adverted to the pleadings and oral and documentary evidence produced by the respective parties and found that the plaintiff had proved the compromise (Exhibit CX) dated 15.5.1992 between the plaintiff and defendant Nos. 2 and 3, namely, Sohan Singh and Harjinder Kaur. Harjinder Kaur had stepped into witness box and admitted the said fact. She also admitted the fact of execution of a family settlement. Thus, the dispute was between the successors of Harbans Singh (plaintiff) and successors of Mohan Singh (original defendant No. 1). The first appellate Court thus accepted the stand of the plaintiff that in the year 1970, after purchase of land, dispute arose between the parties regarding the suit land and in that family settlement, plaintiff was held to be owner of the suit property including its constructions.14. As noticed from the extracted portion of the judgment of the High Court in paragraph 12 above, it is amply clear that the High Court has not dealt with the factual aspects adverted to by the first appellate Court to conclude that the document Exhibit P-6 was only a memorandum of family settlement and not a document containing the terms and recitals of a family settlement. Being the former, no registration was necessary. For which reason, relief claimed by the plaintiff founded on the family settlement between the real brothers arrived at in 1970, acted upon without any exception and documented on 10.3.1988, ought to follow.15. The first appellate Court has also justly opined that the parties had acted upon the stated family settlement and if we may say so, to the prejudice of the other party. In that, the property in the name of plaintiff at Prem Basti was given to Sohan Singh (original defendant No. 2), which was otherwise in possession of Mohan Singh (original defendant No. 1). Further, the plot purchased by the plaintiff in the name of his son was given to Mohan Singh (original defendant No. 1) and his wife, but that plot was admittedly sold by them to one Surjit Kaur. Being a case of a family settlement between the real brothers and having been acted upon by them, it was not open to resile from the same. They were estopped from contending to the contrary. This crucial aspect has been glossed over by the High Court and if we may say so, the second appeal has been disposed of in a most casual manner. Inasmuch as, the impugned judgment of the High Court merely contains extraction of the judgment of the trial Court and first appellate Court and of the relied upon judgments (precedents). The only consideration is found in two concluding paragraphs, which are extracted above (paragraph 12). Even on liberal reading of the same, it is not possible to conclude that the High Court in exercise of its appellate jurisdiction (second appeal) had undertaken proper analysis and scrutiny of the judgment of the first appellate Court in right perspective, much less keeping in mind the limited scope of jurisdiction to entertain second appeal under Section 100 of the Code of Civil Procedure, 1908. The impugned judgment is bordering on a casual approach by the High Court in overturning the well-considered decision of the first appellate Court. Although the impugned judgment runs into 36 pages, the manner in which it proceeds leaves us to observe that it is cryptic. We say no more. On this count alone, impugned judgment does not stand the test of judicial scrutiny.16. Be that as it may, the High Court has clearly misapplied the dictum in the relied upon decisions. The settled legal position is that when by virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale (supra). In the said reported decision, a three-Judge Bench of this Court had observed thus: -9.….. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term family has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. ….. (emphasis supplied)The view so taken is backed by the consistent exposition in previous decisions referred to and duly analysed in the reported judgment. The question formulated by the High Court, in our opinion, stands answered in favour of the appellants (plaintiff), in light of exposition of this Court in Kale (supra). A priori, we have no hesitation in affirming the conclusion reached by the first appellate Court that the document Exhibit P-6 was nothing but a memorandum of a family settlement. The established facts and circumstances clearly establish that a family settlement was arrived at in 1970 and also acted upon by the concerned parties. That finding of fact recorded by the first appellate Court being unexceptionable, it must follow that the document Exhibit P-6 was merely a memorandum of a family settlement so arrived at. Resultantly, it was not required to be registered and in any case, keeping in mind the settled legal position, the contesting defendants were estopped from resiling from the stated arrangement in the subject memorandum, which had recorded the settlement terms arrived at in the past and even acted upon relating to all the existing or future disputes qua the subject property amongst the (signatories) family members despite absence of antecedent title to the concerned property.17. As regards the decision in Bhoop Singh (supra) and Som Dev & Ors. vs. Rati Ram & Anr. (2006) 10 SCC 788 ,  the same dealt with the question of necessity to register any decree or order of a Court governed by clause (vi) of Section 17(2) of the Registration Act, 1908 For short, the 1908 Act . In the present case, however, clause (v) of sub-Section 2 of Section 17 of the 1908 Act is attracted.18. In our considered view, reliance placed by the High Court on the decisions of this Court will be of no avail to alter or impact the conclusion recorded by the first appellate Court. As aforementioned, in Bhoop Singh (supra) and Som Dev (supra), the Court was dealing with the issue of compulsory registration of a decree or order of Court.In the present case, as noted earlier clause (v) of Section 17(2) is attracted, which pertains to execution of any document creating or extinguishing right, title or interest in an immovable property amongst the family members. Thus, the dictum in Kale (supra) is attracted in the fact situation of this case.19. Considering the above, we have no hesitation in concluding that the High Court committed manifest error in interfering with and in particular reversing the well-considered decision of the first appellate Court, which had justly concluded that document dated 10.3.1988 executed between the parties was merely a memorandum of settlement, and it did not require registration. It must follow that the relief claimed by the plaintiff in the suit, as granted by the first appellate Court ought not to have been interfered with by the High Court and more so, in a casual manner, as adverted to earlier.20. Having said that, it is unnecessary to examine the alternative plea taken by the plaintiff to grant decree as prayed on the ground of having become owner by adverse possession. For the completion of record, we may mention that in fact, the trial Court had found that the possession of the plaintiff was only permissive possession and that finding has not been disturbed by the first appellate Court. In such a case, it is doubtful that the plaintiff can be heard to pursue relief, as prayed on the basis of his alternative plea of adverse possession.