TMI Blog2020 (7) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Impugned judgment and decree of the High Court is set aside - Appeal allowed. - CIVIL APPEAL NO. 7764 OF 2014 - - - Dated:- 31-7-2020 - Mr. A.M. Khanwilkar AND Mr. Dinesh Maheshwari, JJ. For the Appellant : Mr. Prem Malhotra, AOR For the Respondent : Mr. Sanjay Jain, AOR JUDGMENT A.M. Khanwilkar, J. 1. This appeal emanates from the judgment and decree dated 27.11.2007 passed by the High Court of Punjab and Haryana at Chandigarh For short, the High Court in R.S.A. No. 946/2004, whereby the second appeal filed by the respondent Nos. 1 to 3 (heirs and legal representatives of Mohan Singh original defendant No. 1) came to be allowed by answering the substantial question of law formulated as under: Whether the document Ex.P6 required registration as by way of said document the interest in immovable property worth more than ₹ 100/was transferred in favour of the plaintiff? 2. Briefly stated, the suit was filed by the predecesso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 18195 (18195) framed following issues: 1.Whether the plaintiff is owner in possession of suit land? OPP 2. 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? OPP 3. Whether the plaintiff constructed shops, a service station and boundary wall around the disputed property? OPP 4. Whether the plaintiff has become owner of suit land by adverse possession? OPP 5. 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? OPD 6. Whether Sohan Singh, Mohan Singh and Harbans Singh constitute a Joint Hindu Family? OPD 7. Whether the defendants are estopped from denying the execution of memo of family set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant 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 preexisting 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 threeJudges 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibit P6 being a memorandum of family settlement. In other words, the concerned parties had acted upon the family arrangement as per the settlement terms decided in 1970 and reinforced by the document Exhibit P6 (memorandum of family settlement). Being a memorandum of family settlement, it was not required to be registered and, in any case, the parties having acted upon the terms of the said settlement to the prejudice of the other party, it was not open to them to resile from the said arrangement. Thus, they are estopped from disowning the arrangement already reached, acted upon and so recorded in the memorandum of family settlement. Thus understood, the plaintiff was accepted and acknowledged to be the owner of the suit property by all the family members who were also party to the memorandum of family settlement (Exhibit P6). The appellants have placed reliance on the decision of this Court in Kale Ors. vs. Deputy Director of Consolidation Ors. (1976) 3 SCC 119 They pray for restoration of the decree passed by the first appellate Court and setting aside the impugned judgment. 8. On the other hand, the respondent Nos. 1 to 3 would contend that the High Court has rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed during minority of defendant Nos. 1 and 2. The defendants had proved the copy of sale deed dated 16.4.1970 (Exhibit DW3/ 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 19841985 of the property in dispute (Exhibit D1) reveals that khasra No. 935/1/1/1 (519) 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 (518) 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 Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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. Only after reproducing the aforesaid extracts in extenso, learned single Judge of the High Court adverted to the factual aspects of the present case in the following words, to allow the appeal: On a consideration of the matter, I find that a document which, for the first time, creates a right in favour of plaintiff in an immovable property in which he has no preexisting right, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 P6 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 P6 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 fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve as follows: 16. Document Ex.P6 is not with regard to khasra no. 395 (1117) but other property is also included in the said document. A plot situated in Prem Basti which was in the name of Harbans Singh and Gurcharan Kaur was already got vacated from Mohan Singh and was given to Sohan Singh and Harjinder Singh. A plot measuring 17 marlas which was purchased by Vikaramjit Singh was given to Manjit Kaur and Mohan Singh and Manjit Kaur DW1 has admitted that she had already sold that plot to Surjit Kaur. So it can be concluded that said document was acted upon. Although few sentences of the said documents are in the present tense but the court is to see from the material on record whether the said document created right in the immovable property or rights were already created but the document was written by way of memorandum. The said document does not pertain to khasra no. 935/1/1/1 (519) but entire khasra no. 935/1 (1117). Had the said document created right in khasra no. 935/1/1/1 (519) then there was no question of throwing khasra no. 935/1/1/2 in common pool and other property of the parties. There is specific recital that on the basis of sale deeds Harbans Singh was own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants have failed to prove that Harbans Singh, Mohan Singh and Sohan Singh constituted Joint Hindu Family Property and construction of the suit property was raised from the Joint Hindu Family Funds. Thus, finding recorded by the learned Trial Court on issues No. 3, 5 and 7 are set aside and it is held that the plaintiff constructed shops and service station and boundary wall on the suit property with his own funds. The defendant has failed to prove that property in dispute was purchased by the income of the Joint Hindu coparcenary property and Sohan Singh, Mohan Singh and Harbans Singh constituted Joint family. So these issues are decided in favour of the plaintiff. Parties executed document Ex.P6 dated 10.3.1988 by way of memorandum of family settlement and it did not require registration. The defendants are estopped from denying the execution of the said document and plaintiff is proved to be owner in possession of the suit land. Issues No. 1 and 2 and 7 are also decided in favour of the plaintiff. Since the plaintiff came in possession of the suit property with the consent of the defendants and his possession never become adverse to the interest of the defendants so finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellconsidered 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 threeJudge Bench of this Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied) The view so taken is backed by the consistent exposition in previous decisions Lala Khunni Lal vs. Kunwar Gobind Krishna Narain, ILR 33 All 356 Mt. Hiran Bibi vs. Mst. Sohan Bibi, AIR 1914 PC 44 Sahu Madho Das vs. Pandit Mukand Ram, AIR 1955 SC 481 Ram Charan Das vs. Girjanandini Devi, AIR 1966 SC 323 Tek Bahadur Bhujil vs. Debi Singh Bhujil, AIR 1966 SC 292 Maturi Pullaiah vs. Maturi Narasimham, AIR 1966 SC 1836 Krishna Biharilal vs. Gulabchand, (1971) 1 SCC 837 S. Shanmugam Pillai vs. K. Shanmugam Pillai, (1973) 2 SCC 312 Ramgopal vs. Tulshi Ram, AIR 1928 All 641 Sitala Baksh Singh vs. Jang Bahadur Singh, AIR 1933 Oudh 347 Mst. Kalawati vs. Sri Krishna Prasad, AIR 1944 Oudh 49 Bakhtawar vs. Sunder Lal, AIR 1926 All 173 Awadh Narain Singh vs. Narain Mishra, AIR 1962 Pat 400 Ramgouda Annagouda vs. Bhausaheb, AIR 1927 PC 227 Brahmanath Singh vs. Chandrakali Kuer, AIR 1961 Pat 79 Mst. Bibi Aziman vs. Mst. Saleha, AIR 1963 Pat 62 Kanhai Lal vs. Brij Lal, AIR 1918 PC 70 Dhiyan Singh vs. Jugal Kishore, AIR 1952 SC 145 T.V.R. Subbu Chetty s Family Charities vs. M. Gag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or .. 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 context of the applicable clause (vi) in subSection (2) of Section 17, the Court in Bhoop Singh (supra) went on to hold as follows: 18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below: (1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would 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 ₹ 100 or upwards ..... X X X X Extracts X X X X X X X X Extracts X X X X
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