1. This is a second appeal arising out of a suit filed by five brothers, the sons of Raghoshet Wani of Dabhadi, against Supadu Laxmanshet Wani, defendant No. 1, his six sons defendants Nos. 2 to 7 and their tenants defendants Nos. 8 and 9. The plaintiffs claimed to recover possession of two lands, Revision Survey No. 83 of Jalgaon and Revision Survey No. 273 of Dhandri, together with Rs. 300 as past mesne profits for three years, future raesne profits and costs of the suit. The plaintiffs based their claim on their title which, they alleged, was accepted by the defendants when Suit No. 395 of 1924 in the First Class Subordinate Judge's Court at Nasik was compromised. The defendants denied their title and contended that the compromise application, being not registered, was inadmissible in evidence and that it was not binding on them as the compromise had been brought about by undue influence. Both the Courts below disallowed these contentions and awarded to the plaintiffs possession of the two lands in suit, together with Rs. 165 for past mesne profits, costs and future mesne profits.
2. The main facts are not now in dispute. The plaintiffs and the defendants were at one time members of a joint Hindu family. They separated in 1913 and started, dividing between them their joint family property. Admittedly some of the; properties were thus divided and allotted to the shares of the respective) parties. Disputes having then arisen, Supadu and his sons filed Suit No. 395 of 1924 in the Court of the First Class Subordinate Judge, Nasik, for a partition of the remaining property and for possession of their share in it. In that suit the two lands which are the subject-matter of this suit had not been included, and the present plaintiffs, Soniram and his brothers, who were then defendants, contended inter alia that those lands belonged to them and had been wrongfully kept in their possession by Supadu and his sons. They did not ask that those two lands should be brought into hotch-pot for being partitioned but claimed that they should be ordered to be given into their possession before a partition was effected. The disputes were eventually settled amicably and a compromise application signed by all the parties was put in. Exhibit 80 is a, certified copy of that application. The first part of that application recited hew the properties in that suit were to be divided and also made a provision for the maintenance of a widow in the family. At the end of these recitals it was stated :
The above has been settled by mutual agreement. Therefore the request is that a decree be passed in terms thereof. Date June 18, 1926.
3. Having thus dealt with the properties in suit, it proceeded to deal with the properties which were not the subject-matter of that suit but about which a claim had been put forward in the written statement. Regarding the two lands which are now in this suit it said :
About the properties mentioned below which art not included in the suit? the fallowing hat been agreed between the parties. The properties, viz. Survey No. 273 at Mouje Dhandri, Taluka Satana, Survey No. 83 at Mouje Jalgaon, Taluka Malegaon and two small houses at
Jalgaon (Daji Dashrath and Daji Bhila Vale) should be delivered by the plaintiff into the possession of defendants Nos. 2 to 6 in the right of ownership. It has been agreed as above.
Date June 18, 1926.
4. Below this the parties and their pleaders made their signatures.
5. As some of the defendants in that suit were minors, an application was made that the compromise was for their benefit and the Court accorded its sanction to it under Order XXXII, Rule 7(1), of the Code of Civil Procedure, 1908. Then, on June 29, 1926, the Court passed an order that the compromise should be recorded and filed, and that a decree should follow in terms of it. Accordingly a decree was drawn up embodying the terms of the first part of the compromise which dealt with the properties comprised in that suit, but made no reference to the second part which related to the delivery of possession of the two lands in this suit to the present plaintiffs as owners. Even after this compromise the defendants wrongfully retained possession of those two lands and did not transfer their possession to the plaintiffs although repeatedly asked h do so. This suit was filed just within twelve years of the compromise application. Apart from the admission made by the defendants in the compromise application, there is hardly any evidence to prove the plaintiffs' title to the lands in suit. The lands were purchased by defendant No. 1, Supadu, when the family was joint and stand in his name in the revenue records. But plaintiff No. 1 Soniram said in Suit No. 395 of 1924, and it is also his case now, that at the partition prior to the institution of the suit of 1924 these two lands had been allotted to the plaintiffs' share and Supadu had wrongfully retained them in his possession. This allegation finds support in the admission made by Supadu and his sons in the compromise application and in their undertaking to hand them over to Soniram and his brothers in the right of ownership. The learned appellate Judge did not think it necessary to go into the question of the plaintiffs' title to the lands on its merits as he thought that it was not open to him to go behind the compromise application.
6. The second part of the compromise application which dealt with the properties which were not the subject-matter of the suit can be regarded either as an acknowledgment of the plaintiffs' title to the two lands or as an agreement to deliver possession of those lands to the plaintiffs as owners or as creating or declaring a title to the lands in the plaintiffs. It is urged by M.M. Kane that considered from any of these three points of view the compromise application can be of no avail to the plaintiffs.
7. If it is an acknowledgment of the plaintiffs' title, then it may be used only for saving the bar of limitation, but their title must be proved by independent evidence. This contention is obviously sound. An acknowledgment may be treated as a piece of evidence to prove title, but in the compromise application it was not admitted that the plaintiffs were the owners of the lands in suit, but the defendants agreed to give possession of the lands as owners. This is not an admission of the plaintiffs' previous title, but an undertaking to transfer possession and allow them to enjoy the lands as owners from that date. Hence it is not by itself sufficient to prove any subsisting title, and the plaintiffs' title has not been held proved by any other evidence on the record. If the compromise application be treated as an agreement, then a suit for its specific performance should have been filed within three years either from the date of the compromise or from the date when the possession was demanded and refused. The plaintiffs gave a notice to defendant No. 1 on July 23, 1925, in which they stated that although they had made repeated demands for possession ever since the compromise decree it had not been given to them. It is, therefore, clear that this suit, if regarded as a suit for specific performance of the agreement, is out of time.
8. Lastly, it is urged that if the compromise application be regarded as creating or declaring the plaintiffs' title to the two lands from that date, then it is inadmissible in evidence for want of registration. Under Section 17(1)(b) of the Indian Registration Act, 1908, every non-testamentary instrument which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, of the value of one hundred rupees and upwards, to or in immoveable property is compulsorily registrable. But Sub-section (2) (vi) makes an exception in the case of any decree or order of a Court. This clause was amended by Section 10 of Act XXI of 1929 by the addition of the following words :-
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.' Before the amendment, every decree or order of a Court was exempt from registration, but now consent decrees and orders comprising immoveable property other than the subject-matter of the suit require to be registered. The compromise in Suit No. 395. of 1924 was before the amending Act of 1929 was passed, and it is not now contended that the amendment of Section 17(2)(vi) by that Act has a retrospective effect.
9. In Hemanta Kutnari Debt v. Midnapur Zamindari Company (1919) L.R. 46 IndApthe Privy Council held that a consent decree did not require to be registered even if it included immoveable property other than what was the subject-matter of the suit. In that case their Lordships indicated the mode of drawing up a decree on a compromise the terms of which embraced lands outside the scope of the suit and observed as follows (p. 246 :.a perfectly proper and effectual method of carrying out the terms of this section would be for the decree to recite the whole of the agreement and then to conclude with an order relative to that part that was the subject of the suit, or it could; introduae the agreement in a schedule to the decree; but in either case, although the operative part of the decree would be properly confined to the actual subject-matter of the then existing litigation, the decree taken as a whole would include the agreement.
10. Thus while the operative part of the decree should be confined to the actual subject-matter of the suit, the terms of the compromise including those relating to matters extraneous to the suit should appear in the decree itself or in a schedule annexed to the decree. In such a case the decree and the schedule were exempted] from registration before the amendment of Section 17(2) (tit) in 1929. But in the present case the compromise decree does not include the agreement regarding the two lands in this suit which were not then the subject-matter of the suit. It is therefore urged that such an agreement, if it is to be used as creating or declaring a title to the lands which are) admittedly worth more than Rs. 100, is: inadmissible in evidence for want of registration. In support of this contention reliance is placed'on the ruling of the Privy Council iu Pranal Annee v. Lakshmi Anned but that ruling is clearly distinguishable.
11. In that case the dispute related to the lands of one Ramaswami which had been inherited by his mother. On her death his daughter's daughter took possession of alt the lands and the reversionary heirs sued her for possession. They had, however, sold away some of Ramaswami's lands for Rs. 4,000 required for the expenses of the litigation and they did not include those lands in their suit. The suit was amicably settled, and two documents were prepared; a razinamah giving a moiety of the lands mentioned in Schedules A, B and C to each of the parties and a separate agreement called 'an agreement of union 'about a similar division of the remaining lands of Ramaswami mentioned in Schedule D which were not the subject-matter of the suit. All the four schedules were appended to the razinamah, but the razinamah itself merely referred to those lands by way of ' Remarks,' but did not declare title of the plaintiffs and the Judge's order made no reference to it. The title to the lands in Schedule D was declared in the agreement of union which was not submitted to the Judge for orders Neither the razinamah nor the agreement of union was registered. The lands in Schedules A, B and C were duly divided in accordance with the decree. Subsequently the reversionary heirs sued for a half share in the lands in schelule D on die strength of the razinamah and the agreement of union. As to the razinamah their Lordship observed (p. 106) :-
The razinamah, in so far as it was submitted to and was acted upon judicially by the learned Judge, was in itself a step of judicial procedure not requiring registration; and any order pronounced in terms of it constituted res judicata, binding upon both the parties to this appeal, who gave their consent to it.
But as regards the agreement of union as it was not mentioned in the decree or in any order of the Court and had not been registered, their Lordships held that its stipulations were ineffectual in law to create any right, title or interest to or in the lands in Schedule D. Their Lordships, however, observed (p. 106):-
If the parties, after agreeing to settle the suit of 1885 on the footing that they were each to take a half-share of the lands involved in that suit, and also a half-share of the lands now in dispute, had informed the learned judge that these were the terms of the compromise, and had invited him, by reason of such compromise, to dispose of the conclusions of the suit of 1885? their Lordships see no reason to doubt that the order of the learned judge, if it had referred to or narrated these terms of compromise, would have been judicial evidence, available to the appellant, that the respondents had agreed to transfer to her the moiety of land now in dispute. But their Lordships are unable to find that any such course was taken, either in the razinamah or in the judicial order which gave effect to it. The razinamah merely referred, by way of remark, to the lands now in dispute; and the judge was only asked to give effect to a compromise which related to the lands then, in dispute before him. This order, accordingly, merely concerns the latter, and has no reference whatever to the lands described in Sched. D of the razinamah. So far as regarded these lands, the compromise was not submitted to the learned judge, but was deliberately left by the parties to stand upon their unregistered agreement of union.
12. This is the ground on which the present case can be distinguished. Although the decide does not refer to the agreement to restore possession of the two lands in suit to the present plaintiffs, the compromise application included that agreement and the Court recorded the agreement as a whole. Under Order XXIII, Rule 3, of the Code of Civil Procedure, the Court shall order the compromise to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit. This means that the compromise to be recorded may deal with the properties outside the subject-matter of the suit but the decree should be passed in accordance with the compromise only; so far as it relates to the suit. According to the case in Hemanta Kumari Debi v. Midnapur Zamindari Company, the decree must set out all the terms of the compromise either in the body of the decree or by a separate schedule, but its operative part must be confined to the agreement regarding the subject-matter di the suit. Unfortunately the decree in Suit No. 395 of 1924 is silent about the agreement regarding the properties which were not comprised in that suit, although the compromise included an agreement regarding them, and the Court did apply its mind to that agreement, and order it to be recorded. That order is appealable under Order XLIII, Rule l(m), of the Code of Civil Procedure. Section 17(2),(vi) as it stood before its amendment exempted from registration not only a decree but also an order of a Court. The Court would not have ordered recording of only a portion of the compromise especially because some of the defendants in that suit were minors and the Court had to apply its mind to the terms of the compromise as a whole, and consider whether they were for the benefit of the minors, before sanctioning the compromise under Order XXXII, Rule 7(1), of the Code of Civil Procedure.
13. The agreement about the two lands in suit which was a part of the compromise was undoubtedly for the benefit of the minors, and after the clause containing that agreement, it was added in the compromise application that those were the terms of the compromise. The Court must have taken into consideration that clause in granting leave to effect the compromise on behalf of the minors. Thus the agreement about the lands in this suit became embodied in the order of the Court, and as was held in Pranal Annee v. Lakshmi Annee it was exempt from registration under Section 17(2) (vi) of the Indian Registration Act and would be admissible in evidence though not registered.
14. That agreement serves the purpose of both declaring the plaintiffs title to the lands in suit and saving the bar of limitation. This being a suit for possession, it is governed by Article 144 of the first schedule to the Indian Limitation Act, and the period of limitation commenced from the date of the compromise recognising the plaintiffs' right to recover possession of the lands as their owners. This suit being brought within twelve years thereafter, it is in time, and the plaintiffs are entitled to recover possession of the lands with past and future mesne profits.
15. This appeal is, therefore, dismissed with costs.