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Jogi Das and ors. Vs. Fakir Panda - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 3 of 1965
Judge
Reported inAIR1970Ori22; 35(1969)CLT939
ActsRegistration Act, 1908 - Sections 1, 17(2) and 49; Code of Civil Procedure (CPC) - ORder 23, Rule 3
AppellantJogi Das and ors.
RespondentFakir Panda
Appellant AdvocateS.S. Basu, Adv.
Respondent AdvocateB.K. Basu and ;B.B. Prasad, Advs.
DispositionAppeal allowed
Cases ReferredHarak Chandas v. Hyderabad State Bank
Excerpt:
.....(2) glt 246, are not good law]. - it was also contended that even in case the said decree was good and effective (which was challenged seriously) then the plaintiff should have proceeded in execution of the said decree without filing a fresh suit of this nature, which would be barred by res judicata; it was further submitted that the terms of the compromise in the previous suit, clearly provided that in case defendants 2, 3 and 5 in the said suit ever claimed their right in plot no. 620 which agreement was included in the compromise, petition in the previous suit, it could at best be said that the part of the decree would be enforceable as a contract between the parties to it and the decree of which it formed a part would be evidence of the said contract but not enforceable as a..........no. 146 of 1962 confirming the judgment of the first additional subordinate judge, cuttack, in title suit no. 214 of 1959.2. the plaintiffs suit, in short, was for declaration of title and confirmation of possession or in the alternative for recovery of possession in respect of 4 decimals 5 kadis of land out of plot no. 620 and also for a permanent injun-ction restraining the defendants from interfering with the plaintiff's possession of the aforesaid portion of the land. the plaintiff also claimed damages for rupees 300/- and a direction on the defendants to demolish a certain construction. he claimed title to the disputed land on the basis of a compromise entered into between himself and defendants 3 and 4 and one svamsundar das (since dead) in a previous suit (t. s. no. 170/42 of.....
Judgment:

S. Acharya, J.

1. This is an appeal by the defendants against the judgment of the 1st Addl. District Judge, Cuttack, in Title Appeal No. 146 of 1962 confirming the judgment of the First Additional Subordinate Judge, Cuttack, in Title Suit No. 214 of 1959.

2. The plaintiffs suit, in short, was for declaration of title and confirmation of possession or in the alternative for recovery of possession in respect of 4 decimals 5 Kadis of land out of plot No. 620 and also for a permanent injun-ction restraining the defendants from interfering with the plaintiff's possession of the aforesaid portion of the land. The plaintiff also claimed damages for Rupees 300/- and a direction on the defendants to demolish a certain construction. He claimed title to the disputed land on the basis of a compromise entered into between himself and defendants 3 and 4 and one Svamsundar Das (since dead) in a previous suit (T. S. No. 170/42 of 1955-57 in the Court of the 1st Munsif at Cuttack). The defendants contested the suit on various grounds, and I would refer to the same as and when necessary. The plaintiff succeeded in both the Courts below in getting a declaration that he acquired title to the disputed land on the basis of the compromise decree in the previous suit and was entitled to recover possession of the same from the appellants.

3. Mr. Basu, the learned counsel for the appellants, seriously contended at first that as title of plot No. 620 was not in dispute in the previous suit, the decree passed in the same suit on the basis of the compromise comprising terms for relinquishment of right in plot No. 620, would be a case within the exception contained in Section 17(2)(vi) of the Registration Act, and the said decree not having been registered did not pass any title on plot No. 620 to the plaintiff. It was also contended that even in case the said decree was good and effective (which was challenged seriously) then the plaintiff should have proceeded in execution of the said decree without filing a fresh suit of this nature, which would be barred by res judicata; and that as the compromise petition forming a part of the said decree did not anywhere mention that 4 decimals 5 Kadis of plot No. 620 was transferred to the plaintiff, his right and title to the same could not be established on the basis of the said decree.

It was further submitted that the terms of the compromise in the previous suit, clearly provided that in case defendants 2, 3 and 5 in the said suit ever claimed their right in plot No. 620 then in the case the plaintiff would be entitled to claim his right over the said plot as he claimed in the plaint of the previous suit. On this it was contended that since one of the above mentioned defendants, namely defendant No. 3, asserted his right over plot No. 620. the plaintiff had the right only to pursue his original remedy in his previous suit, and did not by the said decree acquire any title to the suit land,

4. For the purpose of examining the legal aspect of the first contention regarding the registration of the decree in the previous suit as raised on behalf of the appellants, the facts relevant to this con-tention as found by the court below should be mentioned. Plot No. 620 admittedly belonged to the defendants and deceased Svamsundar Das. In the previous suit the plaintiff inter alia claimed (i) a declaration of his right and title over plots Nos. 622 and 625 and in the alternative a declaration of his right to use these two plots as passage along with the defendants; and (ii) a declaration that he had an easementary right to drain out water of his house in plot No. 623 through plot No. 622 and the present disputed plot No. 620. The suit was compromised between the plaintiff and appellants 3 and 4 (defendants 4 and 5 in the previous suit) and deceased Syamsundar Das who was defendant No. 1 in that suit.

In the said compromise petition the plaintiff relinquished his claim in respect of plot No. 625. and the aforesaid three defendants conveyed their right, title and interest over plot No. 620 in favour of the plaintiff. This later part of the compromise dealing with the defendant's conveyance of their right, title and interest in plot No. 620 was not embodied in the operative part of the judgment in the previous suit (Ext. 3) and also in the court's decree drawn up in accordance with the said judgment. It was submitted by Mr S. S. Basu, the learned counsel for the appellants, that though both the courts below found that the defen-dantg'-/12/- interest in plot No. 620 was conveyed by the compromise in the previous suit, the compromise petitions Exts. 1 and 2 would show that the entire plot No. 620 measuring 0.06 acres was given to the plaintiff by defendants 1, 4 and 5 of that suit.

It is seen from Exts. 1 and 2 that the entire -/16/- of plot No. 620 was relinquished by them in favour of the plaintiff, However, whatever that may be. it is an undisputed fact that these three defendants in the previous suit relinquished their right, title and interest in Plot No. 620 in favour of the plaintiff by the compromise which was arrived at in the previous suit. The question of title in plot No. 620 was not the subject-matter of the previous suit as the plaintiff in the aforesaid suit merely claimed an easementary right to drain cutwater through a defined channel of this plot of land, as can be seen from Ext. 3. I also find from the judgment of the lower appellate Court that 'It has been conceded by the learned counsel for the plaintiff respondent No. 1 that the question of title to the disputed land was not the subject matter of the previous suit.'

5. The object and purpose of the Registration Act, amongst other things, is to provide a method of public registration of documents so as to give informationto people regarding legal rights and obligations arising or affecting a particular property, and to perpetuate documents which may afterwards be of legal importance, and also to prevent fraud. Registration lends inviolability and importance to certain classes of documents. While any compromise arrived at between the parties has to be recorded as a whole under the adjective law in Order 23, Rule 3 C. P. C. and a decree has to be passed in accordance therewith 'so far as it relates to the suit', the provision contained in Section 17(2)(vi) of the Registration Act would require only certain types of such decrees to be registered compulsorily, non-compliance of which would be effected by the substantive law contained in Section 49 of the said Act. By Section 17(2)(vi) as amended in 1929. decrees or orders expressed to be made on a compromise and comprising im-moveable property other than that which is the 'subject-matter of the suit or proceeding' have to be registered if covered by Section 17(1). The words 'so far as it relates to the suit' in Order 23, Rule 3 are of wider import than the words 'subject-matter of the suit or proceeding' in Section 17(2)(vi). The former would engulf within its scope terms which form the consideration for the adjustment of the matters in dispute and may contain within its scope extraneous matters whether they form the subject-matter of the suit or not. Govindagouda Narayanagouda v. Madhava Rao Nara-singa Rao, AIR 1964 Mys 277; Byomkesh Mukherjee v. Bhupendra Narayan Sinha Bahadur, AIR 1948 Cal 179. Thus the words 'so far as it relates to the suit' in Order 23, Rule 3 C. P. C. cannot have the same implication as the words 'subject-matter of the suit or proceeding' in Section 17(2)(vi) of the Registration Act.

6. The title to plot No. 620 was not the subject-matter of the previous suit which fact was conceded by the learned counsel for the plaintiff-respondent in the court below. The relief in respect of plot No. 620 in the plaintiff's previous suit was confined to his easementary right to discharge water through a defined channel on the said plot, as per sketch attached to the plaint and decree, and the entire plot No. 620 or even 12 annas interest thereof was in no way mentioned or concerned in the previous suit. That being the scope of the previous suit it cannot be said that the right, title and interest in plot No. 620 was the subject-matter of the previous suit. The terms in the said decree relating to relinquishment of plot No. 620 by the defendants may be consideration for the adjustment of the matter in dispute, but cannot at all be said to be the subject-matter of the previous suit. In Ankamreddi Konda v. Ankam-reddi Pedademudu, AIR 1957 Andh Pra 454 their Lordships expressed their concurrence with the view expressed by Ven-katarama Rao J. in another case regarding the clause 'subject-matter of the suit or proceeding' which is as follows :

'The question therefore is whether the two items of immoveable property which have been charged by the compromise decree. .....can be said to be the subject-matter of the said suit The expression 'subject-matter of the suit' is not defined in the Registration Act. It seems to me that what the clause contemplates is that specific immoveable property must be subject-matter of litigation. There must be a claim or right in or to the specific immoveable property asserted in the litigation and relief sought in respect thereof in order to make the said property the subject-matter of the suit'

In the present case there was no such assertion on plot No. 620 in its entirety or even to the extent of twelve annas interest of the same. Merely by claim-Ing a right to discharge water through a strip or a portion of the plot it cannot be said that the entire plot was the subject-matter of the suit, as that may lead to various legal complications and unforeseen consequences.

Thus plot No. 620 was not the subject-matter of the previous suit. That being so the said compromise decree comprising the said plot No. 620 must have been registered under the provisions of Section 17 of the Registration Act, and non-registration of the same would not affect the immoveable property comprised therein or be received as evidence of any transaction affecting such property, as provided under Section 49 of the Registration Act The learned Additional District Judge in his judgment has not been able to distinguish the difference between the connotation and implication of the above mentioned two clauses in the Civil Procedure Code and the Registration Act which led to his incorrect finding. Merely because he finds that all the terms in the compromise forming the consideration for the adjustment of the matters in dispute would relate to the suit and can be embodied in the decree, he holds that the decree as such is operative with regard to plot no, 620 even without registration.

As the parties entered into some agreement with regard to this plot No. 620 which agreement was included in the compromise, petition in the previous suit, it could at best be said that the part of the decree would be enforceable as a contract between the parties to it and the decree of which it formed a part would be evidence of the said contract but not enforceable as a decree, Munshi Ram v. Banwari LaL AIR 1962 S. C. 903 : RamJuwan v. Devendra Nath Gupta, AIR 1960 Madh Pra 280; Harak Chandas v. Hyderabad State Bank, Hyderabad, AIR 1960 Andh Pra 56.

7. Mr. B. K. Basu on behalf of the respondent contended that the plaintiff in the previous suit claimed easementary right over plot No. 620, and as easementary right comes within the definition of immoveable property in the Registration Act, plot No. 620 should be considered as a subject-matter of the suit In support of his above contention he depended on Section 2(6) of the Registration Act and Section 4 of the Easements Act, and the decision reported in Lachhman Ram v, Jagabandhu Sahu, (1962) 4 O. J. D. 349, There is no force in this contention. Easementary right may be construed as im-moveable property, but relinquishment of right, title and interest over the entire plot No. 620 or even to the extent of 3/4th of it, was neither contemplated nor was within the scope and purview of the previous suit. Moreover, only because easementary right is considered to be immoveable property, it cannot be said that plot No. 620, on a strip of which easementary right was claimed, became thereby in its entirety the subject-matter of the suit.

8. Thus under Section 49 of the Registration Act the decree in the previous suit not being registered would not in any way affect plot No. 620 and the same cannot be received as evidence of the relinquishment of right made by defendants in the said suit. Therefore in the present suit the plaintiff would not be entitled to the reliefs as claimed by him in respect of plot No. 620, on the basis of the decree passed in the previous suit.

9. The contention, regarding res judi-cata, raised on behalf of the appellants as mentioned in paragraph 3 above, is not tenable. This objection was not taken in the trial court and no issue on the same was framed. The first issue regarding the maintainability of the suit was not pressed and was given up by both parties at the hearing of the suit. The present suit is for a declaration of plaintiff's title to and confirmation or in the alternative for recovery of possession of a portion of plot No. 620 on the basis of the decree in the previous suit, and also for a direction on the defendants to demolish certain construction on plot Nos. 622 and 620 and for a permanent injunction restraining the defendants from interfering with the plaintiff's possession in respect of plot No. 620 and for damages. On the other hand, the previous suit was for (i) declaration of plaintiff's right and title over plots Nos. 622 and 625 or in the alternative for a declaration of plaintiff's right of common passage with the defendants over the said plots, (ii) for a decla-ration of easementary right to discharge water over a portion of plot No. 620, (iii) for permanent injunction upon the defendants restraining them from interfering either with the plaintiff's right of passage or drainage, (iv) for a declaration that the defendants did not have any right to put up any obstruction over plot No. 625 and over the drain on plot No. 620, and (v) for damages arising therefrom. Thus it is evident that in scope and ambit the present suit, as framed, is different from the previous one, and as such this suit cannot be barred by res judicata.

The other contentions raised on behalf of the appellants, as stated in paragraph 3 above, pale into insignificance, and do not arise for discussion in view of my findings above on the appellant's first contention.

10. In the result, therefore, on my findings on the very first contention raised by Mr. S. S. Basu, the learned counsel for the appellants, the judgments and decrees passed by the courts below are set aside, and this appeal is allowed, but in the circumstances of the case there will be no order as to costs throughout.


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