1. The plaintiff is the appellant in this appeal. He instituted the suit out of which this appeal has arisen for declaration of his title to a certain share in some lands and for recovery of possession thereof with mesne profits after partition. The facts necessary to be stated for purposes of the points which have arisen in the present appeal are very few. One Bengu Mahomed had a four annas share of a tenure which previously bore a rental of Rs. 54-8-0 but now bears a rental of Rs. 75. He died leaving behind him 3 sons and a predeceased son's son. The predeceased son's son was amicably given a 1/8 of the share which Bengoo Mahomed owned and the remaining 7/8 of the share came to be owned and possessed by the 3 sons of Bengoo Mahomed who divided the same in three equal shares amongst themselves. One of these three sons was Kohordi Mahomed. Some of the sons of Kohordi Mahomed mortgaged the entire share of their father in the properties, viz. 4 annas 13 gandas and odd karas out of the one fourth share of Bengoo in favour of the plaintiff and the plaintiff in execution of the decree which he obtained on the mortgage purchased the entire share of the said Kohordi Mahomed and took delivery of possession through Court. The mortgagors had really no title to the entire share mortgaged and were only entitled to a share of 2 annas 6 gandas odd karas out of the one-fourth share of Bengoo. The plaintiff after his purchase sold off the share which he had purchased viz. the entire share of Kohordi to defendant 10 under a Kobala on 10th March 1924. Defendant 10 as plaintiff thereupon instituted a suit for possession on eviction of the other heirs of Bengu and made the plaintiff a pro-forma defendant numbered as defendant 10 in that suit. The suit ended in a compromise under which it was dismissed. But one of the terms of the compromise was as follows:
Plaintiff gets from defendant 10 a sum of Rs. 460 in all and in consideration thereof relinquishes in his favour all his claims arising under the Kobala executed by the said defendant 10. The title of defendant 10 to the lands in dispute to which he is in fact entitled under his auction purchased right remains unimpaired and the plaintiff's claim thereto will be rejected.
2. Thereafter, the plaintiff instituted the present suit claiming the share which had really passed to him under his auction purchase (i.e. 2as. 6g. odd in Bengoo's one fourth) and for recovery of mesne profits after partition of that share. Defendants 1 to 4 had not appeared to challenge the plaintiff's title to the share that he claimed, but put forward a defence as against the plaintiff's claim for mesne profits. Defendants 5 to 9, while supporting the pleas which defendants 1 to 4 took, pleaded, in addition, that the plaintiff had acquired no title to the share under the compromise decree which was passed in the suit, which defendant 10 had instituted and to which reference has already been made. They also resisted the plaintiff's claim for partition. Amongst the issues that were framed there were three which were pressed and so were dealt with by the learned Subordinate Judge, namely Issues 4, 6 and 11. The findings of the learned Judge on Issue 6 are to the effect that the plaintiff had, under the auction purchase, acquired the share which he has claimed in the present suit, but that he had parted with that share in favour of defendant 10 by a registered Kobala Ex. 2. It was found also that the compromise decree on which the plaintiff relied for the purpose of showing that the right, title and interest of defendant 10 to that share was extinguished and his own title to the share was revived, was one which could not be admitted in evidence for want of registration. Being of that opinion, the learned Subordinate Judge held that the compromise decree had not conferred any title to the plaintiff and that therefore the plaintiff's prayer for declaration of title should be dismissed.
3. As regards issue 4 the Judge, upon the evidence of plaintiff's witness 3, Amiruddin, held that there were certain lands in the jote which were in the ejmali possession of all the cosharers of the entire jote of Rs. 75 and that although the cosharers who were the heirs of Bengu Mahomed and were entitled to the four annas share in the bigger jote were made parties to the suit; the remaining 12 annas cosharers had not been impleaded as parties thereto. On this finding the Judge held that the claim for partition could not be proceeded with. As regards the mesne profits which is the subject-matter of issue 11, the learned Judge was of opinion that the plaintiff was not entitled to any mesne profits in view of certain circumstances to which the learned Judge has referred in this connexion. But he has observed that if on any ground it was thought proper to award mesne profits, such profits should not in his opinion, exceed Rs. 100. In this appeal which the plaintiff has preferred, his principal argument is directed against the conclusions of the learned Subordinate Judge on issue 6. The reason upon which the learned Judge has proceeded in holding that the compromise decree required registration before it could be admitted in evidence seems to be the following: that the suit in which that decree was passed was for possession of the share of Kohordi by ejecting certain persons who were the principal defendants, that is to say defendants 1 to 9 in that suit, and that defendant 10 in that suit, the transferor, was only a pro forma defendant. The learned Judge evidently thought that in deciding the question as to whether the decree should be regarded as admissible or not under the provisions of Section 17, Registration Act, the Court can go behind the terms of the decree itself and find out what the contentions of the respective parties were in the suit or, in other words, whether some relief was actually claimed against the particular defendant with whom the compromise was effected. Section 17, Registration Act, in Sub-section (1), specifies the different kinds of documents that shall be registered or in other words of which the registration is compulsory. Clause (b) of that sub-section speaks of other 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 or upwards etc. Leaving aside the question of value for the moment, a document which purports or operates to create or declare right in favour of another, if it is to be operative at all, must be registered under the provisions of Section 17, Sub-section (1), Clause (b). But Clause (4) of Sub-section (2), Section 17 says:
Nothing in Clauses (b) and (c), Sub-section (1) applies to 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.
4. Upon the plain terms of the provisions to which I have just referred it is clear that if by a decree of a Court made on a compromise a transaction is had which has the effect of extinguishing the right of a party, and declaring or creating a right in favour of another party in any property which is the subject-matter of the suit or proceeding, Sub-section (1), Section 17 of the Act would not hit that decree. It is difficult to see how upon the plain terms of the compromise decree in the present suit it can be regarded as falling outside the provisions of 01. (4), Sub-section (2), Section 17, Registration Act. The decree was therefore admissible notwithstanding that it was not registered. Once it is held to be admissible, the result is that it is binding between the plaintiff and defendant 10. Defendant 10 has been examined as a witness on behalf of the plaintiff in the present suit. He has not laid any claim to the share which is covered by the declaration contained in the decree. And defendants 1 to 4 who were the original owners of that share and were the plaintiffs mortgagors have not laid any claim thereto. Apart from anything else, it is highly doubtful if it is at all open to defendants 5 to 9 who had no title to that share, to take the defence that the plaintiff has no title to the share which he has claimed. But whatever that may be the decree which was passed in the previous suit expressly provided that any right which defendant 10 had acquired under his purchase from the plaintiff was extinguished and the plaintiff's title to the share which he had previously sold to defendant 10 remained unaffected. Plaintiff therefore is clearly entitled to the declaration of the title that he has asked for in this suit in respect of the share stated by him in his plaint.
5. The next question is as to whether the suit as a suit for partition can go on in view of that fact that some of the co-sharers of the bigger jote of Rs. 75 have not been made parties to it. We think the learned Judge has taken the right view of this matter and it is not possible, having regard to the frame of the suit such as it is to proceed with it for the purpose of making a decree for partition. As regards mesne profits, which form the subject-matter of issue 11 the learned Judge has given very good reasons for holding as to why the plaintiff should not be awarded any mesne profits at all. Looking at the facts from the right angle of vision it would seem that the defendants who were in possession of the lands had no alternative but to be in such possession. It has not been proved that the plaintiff at any time made any attempt to take possession and it is not right that a party who does not take any steps to take possession of lands from others who are his cosharers should be allowed a decree for mesne profits. The claim for mesne profits has been rightly refused.
6. The result is that the appeal succeeds in part, the decree from which it has been preferred is set aside and it is ordered that, the plaintiff's title to the share claimed by him in the plaint be declared. Plaintiff will be entitled to joint possession with the defendants. The appellant will have his costs of this appeal from respondents 10 to 14 hearing fee being assessed at three gold mohurs.
M.C. Ghose, J.
7. I agree.