Case: MOHAMMADE YUSUF &amp; ORS Vs. RAJKUMAR &amp; ORS.

2. The brief facts of the case are:2.1 A Suit No. 250-A of 1984 was filed by one Habib Kha, the father of the appellant for declaration and injunction. The Suit was filed for 7 biswa area of survey No.203 situated at Village Kitvani, Kasba Mandsaur, which was attached in east with the land of plaintiff being survey No.223. The plaintiff was in possession of suit land, which was recorded in the names of defendant. A compromise decree was passed in the suit dated 04.10.1985 declaring the right of plaintiff on 7 biswa area and it was declared that remaining land belong to defendant.      2.2 The appellants, who were son of Habib Kha claimed to be in possession, continued to be in possession of the aforesaid area. A Suit No.90-A of 2006 was filed on 16.09.1998 by respondent Nos. 1 and 2 against the appellants for perpetual injunction in respect of two areas admeasuring 825 sq. ft. and 1650 sq. ft. bearing survey No.203. The respondent Nos. 1 and 2 sold the above said two areas to respondent Nos. 4 to 7 and they were impleaded as plaintiffs in the above said suit. A written statement was filed by the appellants in Civil Suit No. 260A of 1998 pleading that respondents have forcefully took the possession of area admeasuring 1650 sq. ft. being the part of survey No.203, which was in actual, peaceful and uninterrupted possession of the appellant and their ancestral since 1951. Along with the written statement, a counter claim was filed by the appellant for recovery of possession of the area.      2.3 During evidence of Mohammade Hafiz, one of the appellants, he tried to exhibit the decree dated 04.10.1985 passed in Civil Suit No.250A of 1984, which was objected by the plaintiff. Plaintiffs objection to the admissibility of the decree was that decree being not registered cannot be accepted in evidence. Learned Civil Judge heard the parties and passed order dated 07.01.2015 on issue regarding admissibility of the above document. Civil Judge took the view that decree dated 04.10.1985 is required to be registered as per provision of Section 17(1) (e) of the Registration Act, hence it is not admissible in evidence. A Writ Petition No.2170 of 2015 was filed by the appellant challenging the order dated 07.01.2015. The High Court by the impugned judgment has dismissed the writ petition taking the view that decree was required to be registered. The High Court held that the very fact that the suit was based on the plea of adverse possession reflects that plaintiff of Suit No.250-A of 1994 had no pre-existing title in the suit property. Relying on the judgment of this Court in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another, (2014) 1 SCC 669 ,  High Court held that it is settled that declaratory decree based on plea of adverse possession cannot be claimed and adverse possession can only be used as a shield by the defendant. Aggrieved with the judgment of High Court, this appeal has been filed.

Reasoning: 6. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but sub- section(2) of Section 17 provides for an exception for any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of sub-section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of sub-section (2), one category is excepted from sub-clause(vi), i.e., a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain reading of Section 17(2)(vi)9. The judgment of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra) has now been expressly overruled by a Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others, (2019) 8 SCC 729 .  This Court held in the above case in paragraph 62 that once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner. In paragraph 62, following has been laid down:62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owners right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owners title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit10. In paragraph 61, this Court has expressly overruled the Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another (supra)11. In view of the pronouncement of this Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others (supra), the very basis of the High Court for holding that compromise deed dated 04.10.1985 requires registration is knocked out. The present is not a case where there is any allegation that the decree dated 04.10.1985 is a collusive decree. The decree dated 04.10.1985 was in favour of the plaintiff of 7 biswa land, survey No.203 and for remaining land of survey No.203, it was held that it belonged to defendants14. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., any decree or order of a Court. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise13. This Court in Som Dev and Others Vs. Rati Ram and Another, (2006) 10 SCC 788    while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following: -18. ……………But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of Section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit…………………….