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Smt. Dhobani Dei and ors. Vs. Smt. Suchitra Mohanti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 108 of 1978
Judge
Reported inAIR1983Ori247
ActsRegistration Act, 1908 - Sections 17(2)
AppellantSmt. Dhobani Dei and ors.
RespondentSmt. Suchitra Mohanti and ors.
Appellant AdvocateS. Mohanty and ;A.S. Naidu, Advs.
Respondent AdvocateN. Mukherjee, Adv.
DispositionAppeal dismissed
Cases ReferredJogi Das v. Fakir Panda. In
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..........vacant area to the west of bhanubati dei's western wall as a result of which bhanubati dei filed title suit 164 of 1957 against defendant 1 in the court of the first munsif, cuttack. the suit was disposed of in 1960 on compromise between the parties. according to the terms of the compromise, bhanubati dei, her masons and labourers would be entitled to come over plot no. 529 in order to effect repairs to the western boundary wall of bhanubati dei's house without any objection or hindrance by present defendant 1, a drain, 19' in length and, approximately 9' in breadth, would be constructed over plot no. 529 on the northern side of bhanubati dei's building to facilitate passage of drain water and bhanubati dei would pay rs. 250/- to defendant 1. a sketch map indicating the aforesaid.....
Judgment:

B.N. Misra, J.

1. The defendants have filed this appeal against the confirming judgment of the learned Third Additional Subordinate Judge, Cuttack. The late Dayanldhi Mohanty, the late Chittaranjan Mohanty and Niharranjan Mohanty (respondent 5) filed Title Suit 15 of 1973, against the present appellants (defendants). Following the death of Dayanidhi Mohanty while the appeal was pending in this Court, present respondents l(a) and l(b) have been substituted in his place. Chittaranjan Mohanty had died while the matter was pending in the lower appellate court and present respondents 2, 3 and 4 were substituted in his place in that court. Present respondent 6 was pro forma defendant 4 in the trial court.

2. The case of the plaintiffs may be briefly stated. Plaintiffs 2 and 3 and proforma defendant 4 are the sons of plaintiff 1. Deceased Bhanubati Dei was the wife of plaintiff 1. Defendants 1 and 3 are the wife and son respectively of defendant 2. The property described in schedule 'A' appended to the plaint including Ac. 0.44 decimals on the eastern side out of plot 528 was purchased by Bhanubati Dei, wife of plaintiff 1 for Rs. 1500/-by a registered deed of sale D/- 6-6-1949 from the owners, Mohan Samal and Padmalav Samal. Around the year 1965 defendant 1 purchased plot No. 529 adjoining plot 528 on the western side. When Bhanubati Dei was about to put up a construction on the western side of plot No. 528, defendant 1 suggested that a space of six links should, be left on the west of Bhanubati Dei's building as a joint path way, each party contributing three links, for facilitating repair and whitewashing of their respective buildings and for drainage of water. Accordingly Bhanubati Dei constructed her building over Schedule 'A' property leaving space of about three links on the western side and put up a boundary wall on the western side running north to south. However defendant 1 tried to close the aforesaid, vacant area to the west of Bhanubati Dei's western wall as a result of which Bhanubati Dei filed Title Suit 164 of 1957 against defendant 1 in the court of the First Munsif, Cuttack. The suit was disposed of in 1960 on compromise between the parties. According to the terms of the compromise, Bhanubati Dei, her masons and labourers would be entitled to come over plot No. 529 in order to effect repairs to the western boundary wall of Bhanubati Dei's house without any objection or hindrance by present defendant 1, a drain, 19' in length and, approximately 9' in breadth, would be constructed over plot No. 529 on the northern side of Bhanubati Dei's building to facilitate passage of drain water and Bhanubati Dei would pay Rs. 250/- to defendant 1. A sketch map indicating the aforesaid details was appended to the compromise petition and has been indicated in Schedule .'B' appended to the plaint. Defendant 1 received payment of Rs. 250/- from Bhanubati Dei and thereupon the compromise was acted upon by the parties. On the death of Bhanubati Dei in 1963 plaintiffs 1, 2 and 3 and pro forma defendant 4 succeeded to the estate of Bhanubati Dei including Schedule 'A' property. On 20-1-1973 the defendants in violation of the terms of compromise started digging a foundation on the northern side of the plaintiff's house and on the western side of the plaintiff's boundary wall for the purpose of greeting a building. The defendants also put up a thatch close to the western wall of its northern side. Apprehending that the proposed construction by the defendants would close the drain and, prevent the plaintiffs and their labourers to come over plot No. 529 to attend to repairs and whitewashing of the building, the plaintiffs were obliged to take shelter of the court. The plaintiffs have accordingly prayed for declaration of their right of passage over plot No. 529, for passage of drain water and for repair and whitewashing of their house, for permanent injunction against the defendants and for mandatory injunction with a direction to the defendants to demolish the obstruction to the drain and remove the thatch,

3. In their written statement the defendants have asserted that the plaintiffs are not entitled to any relief as they have not made out a case either of easement or grant of rights claimed by them. The plaint allegations are denied. It is denied that the parties had agreed to provide a drain, 19' in length and approximately 9' in breadth over plot No. 529 and that defendant 1 had tried to close any space to the west of Bhanubati Dei's western wall. It is asserted that since the terms of compromise allowed the plaintiffs to construct a drain over the plot of defendant 1 on payment of Rs. 250/-, the right of the plaintiffs is permissive in character and as such they cannot claim any right either over the drain or over plot No 529. The permissive right granted under the compromise was a personal right conferred upon Bhanubati Dei and as such the plaintiffs have not acquired any right in respect of the compromise. The plaint allegation that the compromise was acted upon by the parties is denied. It is also stated that plot No. 529 which is the subject matter of the present suit was not the subject matter of Title Suit 164 of 1957 and therefore the compromise is not binding on the defendants.

4. The learned Munsif decreed -the plaintiffs' suit on the finding that the compromise in Title Suit No. 164 of 1957 is binding on the appellants and the respondents by virtue of the compromise decree passed: in the earlier suit. The appeal filed by the defendants was dismissed by the learned lower appellate court which confirmed the judgment and decree of the learned Munsif.

5. The substantial question of law which arises for consideration is whether the compromise decree creating a right of easement in favour of the plaintiffs on the appellants' land, is compulsorily registrable under Section 17, Registration Act. Admittedly Title Suit, 164 of 1957, was filed by the late Bhanubati Dei against defendant 1. It may be recollected that plaintiff 1 is the husband and plaintiffs 2 and 3 and pro forma defendant 4 are the sons of Bhanubati Dei. Defendant 1 is the wife of defendant and defendant 3 is their son. Exhibit 5 is the plaint filed by Bhanubati Dei in Title Suit 164 of 1957. The prayer in the plaint is for declaration of right, title, interest and possession of Bhanubati in respect of Schedule 'A' property, which is the same as Schedule 'A' appended to the plaint in this suit and for injunction. In Schedule 'B' appended to the plaint in Title Suit 164 of 1957 the disputed portion is marked in red as A, B, C, D, E and F and it is shown as a part of plot No. 528. Exhibit 7 is the written statement filed by defendant 1 in Title Suit, 164 of 1357. In para 8 of that written statement defendant 1 has asserted that the portion marked A, B, C, D, E and F in Schedule 'B' of the plaint in that suit is a part and parcel of plot No. 529 purchased by her. Exhibit 6 is the joint compromise petition filed by Bhanubati Dei and defendant 1 in Title Suit 164 of 1957. In this petition parties have agreed that the disputed portion is a part of plot No. 529 and that Bhanubati has a right of passage and drainage over the disputed portion of plot No. 529 subject to the condition that Bhanubati should pay Rs. 250/-to defendant 1. Exhibit 4 (a) is the receipt granted by defendant 1 in token of her having received Rs. 250/- from Bhanubati on 29-7-1960. The compromise petition, Exhibit 6 has been made a part of the decree in Title Suit 164 of 1957 signed by the learned Munsif on 2-8-1960.

6. Learned counsel for the appellants has submitted that the compromise decree in Title Suit 164 of 1957 cannot create any right of easement in favour of the plaintiffs over plot No. 529 which admittedly belongs to the defendants as the said compromise decree has not been registered under the Registration Act. I would first refer to Section 17(2)(vi), Registration Act, which exempts from registration 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. In AIR 1937 Mad 504, Kandula Ramayya v. Bangaru Rangaraju, it was held:

'.....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 immovable property must be the subject-matter of litigation. There must be a claim or right in or to the specific immovable property asserted in the litigation and relief sought in respect thereof in order to make the said property the subject-matter of a suit.'

It was also observed that before immovable property could form the subject-matter of a litigation, it must be sufficiently designated. The principles enunciated in the aforesaid case were approved in AIR 1957 Andh Pra 454, Ankamreddi Konda v. Ankamreddi Pedademudu. I would also respectfully agree with the line of reasoning adopted in the aforesaid Madras case.

7. In support of his contention that registration of the compromise decree was compulsory, learned counsel for the appellants relies on AIR 1933 Lah . 267, Imam Din v. Nizam Dian and AIR 1970 Orissa 22, Jogi Das v. Fakir Panda. In the former case it was held that a right of ownership and a right of easement were two totally distinct things, the former was a personal right while the latter was annexed to the adjoining land or property and ran with it and that a relief arising out of a claim founded on the one was utterly inconsistent with relief of a claim based on the other. Learned counsel for the appellants has urged that in Title Suit 164 of 1957 Bhanubati had, claimed a right of ownership while in the present suit the plaintiffs are claiming a right of easement and as the two reliefs claimed are utterly inconsistent with each other, the subject-matter of the previous suit cannot be considered to be the subject-matter of the present suit-In other words, according to learned counsel, the expression subject-matter of the suit' means 'relief claimed in the suit'. The language of Section 17(2)(vi) of the Registration Act does not support the construction put on it by learned counsel. Relief is claimed in respect of the subject-matter of the suit. 'Relief claimed' cannot be equated to mean the same thing as the 'subject-matter of the suit'. The aforesaid Lahore decision does not lay down any such proposition. This contention of the learned counsel for the appellants must therefore be rejected.

8. In the latter case it was observed:

'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 casementary 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 facts of the present case are entirely distinguishable from those in the Orissa case. In the present case the disputed portion of the immovable property is the same as that of the Title Suit 164 of 1957. In that suit the question was whether the disputed portion was a part of plot No. 528 belonging to the plaintiffs or a part of plot No. 529 belonging to the defendants. Bhajiubati had claimed ownership over the disputed portion on the basis that it was a part of plot No. 528, but she and defendant 1 agreed in their compromise that it was a part of plot No. 529 over which Bhanubati was given easementary right and the Court confirmed this arrangement, by passing the decree in terms of the compromise. There can be no doubt that the specific immovable property remains the same in the two suits. I would accordingly agree with the learned courts below that the subject-matter of the present suit was the subject-matter of the previous suit. Hence registration of the compromise decree was not necessary.

9. In the result, this appeal is dismissed with costs. The judgment and decree of the learned courts below are confirmed.


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