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Amruta Purohitani Vs. Jogesh Chandra Hota and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 6 of 1965 and Civil Revn. No. 292 of 1965
Judge
Reported inAIR1969Ori5; 34(1968)CLT479
ActsRegistration Act, 1908 - Sections 17(1), 17(2) and 18
AppellantAmruta Purohitani
RespondentJogesh Chandra Hota and anr.
Appellant AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
Respondent AdvocateH.G. Panda, Adv.
DispositionAppeal dismissed
Cases Referred and Ghulam Ahmad v. Ghulam Qadir
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........the mind that in the compromise petition dated 24-7-63, parties did not create or extinguish any right. parties intended that such a right should be created or extinguished in the decree to be passed in t. s. 41/62. on the aforesaid conclusion, the view taken by the courts below was correct. 6. mr. sinha placed reliance on chambi devi v. gora lal, air 1954 pepsu 42; brahmanath v. chandrakali, air 1961 pat 79 and ghulam ahmad v. ghulam qadir, air 1968 j & k 35. they are correct so far as they go. in all these authorities the basic distinction has been kept in view. with respect to the facts in those cases their lordships came to the conclusion that particular documents created rights and as they were unregistered, no rights can be acquired on that basis. these decisions have no.....
Judgment:
ORDER

G.K. Misra, J.

1. Between the parties a large number of arbitration cases were pending before the Arbitrator, Hirakud Land Organisation, Sambalpur. They entered into a compromise. The arbitration cases were disposed of in terms of the compromise. They are not the subject matter of the civil revision or the miscellaneous appeal. In paragraph 2 of the compromise petition filed before the Arbitrator, the compensation payable to the estate of Mst. Jema Purohitani in respect of submerged Bhogra and rayati lands in village Bausen was divided in certain proportions. The miscellaneous appeal is filed challenging this division. As the subject matter of the compromise in this paragraph consists of moveable property, there was no necessity for registrationland the compromise is held to be genuine land valid. The terms are enforceable.

Mr. Sinha was, therefore, right, in making a concession that it was difficult to support the miscellaneous appeal. It is accordingly dismissed. There would be no order as to costs of this appeal.

2. So far as the civil revision is concerned, the controversy centres round the terms of the compromise in paragraphs 3 and 4 of the petition. The relevant portions are extracted hereunder:

'Para 3. That the unsubmerged lands of mouza Bausen as also any other compensation payable to Mst. Jema shall exclusively go to Mst. Jaikumari Patiani.

Para 4. That Mst. Jaikumari (O.P. 5), who has filed a T.S. 41 of 62 in the court of the Sub-Judge against O. P. No. 3 shall get a decree for declaration of right and recovery of possession of un-submerged lands at Bausen belonging to Jema Purohitani without costs ............'

3. It is the common case of the parties that the unsubrnerged lands of mouza Bausen are the subject matter of dispute in T. S. 41/62. Mr. Sinha contends that as the value of the unsubrnerged lands in mouza Bausen is about Rs. 4200 the compromise was compulsorily registrable and the suit could not have been compromised on the basis of the compromise petition filed in the arbitration cases on 24-7-63.

4. Mr. Sinha's contention is that the compromise in respect of the unsubrnerged lands in mouza Bausen is compulsorily registrable under S. 17(1)(b) of the Indian Registration Act, which lays down that non-testamentary instruments, which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, shall be registered. Mr. Panda, on the other hand, contends that the compromise petition falls within the purview of Section 17(2)(v), which enacts that nothing in Clauses (b) and (c) of Sub-section (1) applies to any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable 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. Section 17(2), Clause (v) is therefore a clear exception to Section 17(1), Clause (b). There are abundant authorities in support of either contention. But all of them must turn on the facts and circumstances of each case depending upon the construction of the terms of the compromise. No hard and fast rule can be laid down. The crucial test in each case would be as to thenature of the document itself. If it does create a right, title or interest in itself, whether in present or in future, it is compulsorily registrable. If by itself it does not create any right but visualises creation or extinction of a right by some other document, then it would sauarely fall within the ambit of Section 17 (sic)

5. Looking to the paragraphs 3 and 4, already extracted, it would be clear that the parties did not intend to create any right by the compromise petition itself. Though paragraph 3 is capable of a construction that creation of a right in praesenti was intended, as would appear from the expression 'shall exclusively go', paragraph 4 makes it further clear that creation of a right in praesenti was deferred. The expression used therein is 'shall get a decree for declaration of right and recovery of possession of unsubmerged lands in T. S. 41/62'. These paragraphs 3 and 4, read as a whole, leave absolutely no doubt in the mind that in the compromise petition dated 24-7-63, parties did not create or extinguish any right. Parties intended that such a right should be created or extinguished in the decree to be passed in T. S. 41/62. On the aforesaid conclusion, the view taken by the courts below was correct.

6. Mr. Sinha placed reliance on Chambi Devi v. Gora Lal, AIR 1954 Pepsu 42; Brahmanath v. Chandrakali, AIR 1961 Pat 79 and Ghulam Ahmad v. Ghulam Qadir, AIR 1968 J & K 35. They are correct so far as they go. In all these authorities the basic distinction has been kept in view. With respect to the facts in those cases their Lordships came to the conclusion that particular documents created rights and as they were unregistered, no rights can be acquired on that basis. These decisions have no application to the facts of this case.

7. In the result, the civil revision fails and is dismissed. In the circumstances, there would be no order as to costs.


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