HARI SHANKAR Vs. DURGA DEVI

JUDGEMENT

(1.) THIS is the defendant's second appeal. They have lost in both the courts below and have come up in the instant appeal.

(2.) THE brief facts are these:- THE deity sued as the plaintiff for a declaration that the deity was the owner of house No. 211, Faithful Ganj, Kanpur. One Pitamber Lal was the original owner of many properties including the one in dispute in the suit. He died some time in 1932 and on his death, dispute arose between various parties. One Raghubir Prasad claimed to be the adopted son of the said Pitamber Lal. Smt. Rukmani Kunwar was the widow and Newaji Lal was the brother of the said Pitamber Lal. Raghubir Prasad filed suit No. 28 of 1933 in the court of the Civil Judge, Kanpur, wherein Newaji Lal and Smt. Rukmani Kunwar were made defendants. THEre were certain other defendants also in the said suit. THE prayer in the suit was that a declaration be granted that in terms of the will dated 17th September, 1932 of the said Pitamber Lal, the plaintiff Raghubir Prasad was the trustee in valid possession and management of the properties detailed at the foot of the plaint. In the alternative, the relief sought was that in case the aforesaid relief could not be granted to the plaintiff, then the latter was entitled to the said property as the validly adopted son of the said Pitamber Lal and that he was in possession of the said properties in the said capacity. Admittedly the property in dispute before me was one of the items of the properties detailed at the foot of the plaint. THE said Suit No. 28 of 1933 was ultimately compromised and the said compromise was made the rule of the court. A certified copy of the compromise decree is Ext. 10 in the suit. Under the terms of the compromise, it was settled that house No. 87/167, Bhannapurwa would be the property of the plaintiff deity and the temple of the deity would be constructed therein and the deity would be installed in the temple and it was also agreed that certain amounts in deposit with the Punjab National Bank Limited belonging to Pitamber Lal were to be utilised for the said purpose. It was further stipulated that house No. 211, which is the subject-matter of dispute before us, was to be given to Smt. Rukmani Kunwar to remain in her possession during her lifetime but she was not given any power of alienation and on her death the property was to stand dedicated to the deity Durga Devi who was to be its owner. Certain trustees of the deity were appointed in terms of the compromise decree. THE plaintiff deity alleged that the said compromise decree passed in suit No. 28 of 1933 was fully acted upon and the deity was installed with full religious ceremony in the aforesaid Bhannapurwa house after the temple had been constructed therein as stipulated in the compromise decree. It was stated that on 9th January, 1959, Smt. Rukmani Kunwar died and on her death, the deity became entitled to the possession of the said house which had been declared to be a Wakf property vesting in the deity after the death of Smt. Rukmani Kunwar by the aforesaid compromise decree passed in suit No. 28 of 1933. It was alleged that the defendants were questioning the plaintiffs title which they had no right to do and, therefore, it had became necessary for the plaintiff deity to seek a declaration of her title. THE property happens to be in possession of the tenants who were sought to be pressurised by the defendants so that they did not pay the rent to the plaintiff deity.

(3.) IN the second appeal before me, Shri K. C. Saxena learned Counsel for the appellant, has contended that the compromise decree was not admissible in evidence for want of registration. He has relied on S. 17 (1) (b) of the Registration Act, 1908 and has contended that the exception laid down in clause (vi) of subs. (2) of S. 17 of the said Act will not save the compromise decree in the instant case because the scope of the suit in the earlier litigation was such that no dedication could be made in favour of the deity in respect of the property in dispute and further, no scheme of the management could be laid down in the compromise decree looking to the nature of the suit and the reliefs claimed therein. Learned counsel has also placed reliance on Ram Gati Chaube v. Ram Adhar Chaube, (AIR 1961 All 537), (FB), which is a Full Bench decision of this Court. IN my opinion, this contention is not tenable. So far as the Full Bench case is concerned, it is obviously distinguishable. IN the said decision, the court was called upon to consider the effect of an ambiguous one word order passed by the mutation court. The one word order was 'approved'. Looking to the nature of the prayer made in the application, the Full Bench held that the mutation court by its order directed the names of the parties to be mutated over the properties which were so specified in the compromise application. The Full Bench has clearly observed as follows :- "The Sub-Divisional Officer, to whom the application was presented, passed a monomial order, 'approved', and thereafter the names of the parties were mutated in village records. The primary question is whether that order embodies the entire terms of the compromise application. An order, which explicitly records the entire compromise application, poses no problem (see Hemanta Kumari Debi v. Midnapur Zamindari Co. Ltd., 46 INd App 240 : (AIR 1919 PC 79), but an ambiguous order needs judicial exposition as to what it does and what it omits to do (see Pranal Anni v. Lakshmi Anni. (1899) ILR 22 Mad 508 (PC).)