KARUNAKAR ROUT Vs. GOLAK BEHARI BISWAL

JUDGEMENT

(1.) This Letters Patent Appeal has been preferred by the plaintiff in Title Suit No. 67 / 91-I of the Court of the Subordinate Judge, Athgarh challenging the order of the Hon'ble Single Judge of this Court dated 6-5-1997* allowing the First Appeal No. 120 of 1975 preferred by the defendants. *Reported in AIR 1987 Orissa 236

(2.) The suit of the present plaintiff-appellant was for a declaration that the compromise decree-passed in Title Suit No. 8/68 field at the instance of defendant No. 3 of the Title Suit No. 67 / 74-I earlier did not effect his eight annas interest in the suit property and his interest was not affected at all by the registered sale deed dated 9-4-1974 executed by the defendant no. 3 (in T.S. No. 67/74-I) in favour of Defendants 1 and 2 who were the sister's sons of Defendant No. 3 and also for a declaration that the plaintiff was entitled to exercise his right of pre-emption in respect of the share of Defendant No. 3 in the suit property and defendant Nos. 1 and 2 are entitled to separate possession of the specified portion of the suit property and for a further prayer for directing the defendant Nos. 1 and 2 not to come into separate possession until the property was partitioned. According to the plaintiff, Defendant No. 3 is the adopted son of Digambar who died in the year 1967 and as such, the names of plaintiff and defendant No. 3 who was the adoptive mother, were recorded in revenue records by way of mutation. As already stated, Defendant Nos. 1 and 2 were he sisters son of defendant No. 3. The suit property which is an area of Ac. 3.59 dec. of land stood recorded in the name of Digambar. On his death his widow, the defendant No. 3 as well as his adopted son plaintiff inherited the same. Since dispute arose between the adoptive son and the adoptive mother, the adoptive mother, defendant No. 3 had filed Title Suit No. 8/ 68 in the court of the Munsif, Athgarh disputing the adoption of the plaintiff. The suit, however, was compromised on 30-11-1973 in which defendant No. 3, the adoptive mother acknowledged the plaintiff to be the adopted son of Digamber and in view of such acknowledgment the plaintiff gave up his eight annas share in the suit property in favour of defendant No. 3, the adoptive mother except four annas interest in the agricultural lands which plaintiff had kept to himself. The suit was decreed in terms of the compromise which contained a clause that the plaintiff would get the same registered within seven days; failing which it was open to defendant No. 3 to get it registered after obtaining copies thereof but admittedly no registration had been done. Subsequently the adoptive mother, defendant No. 3 executed a sale deed in favour of defendant Nos. 1and 2. Hence the suit was field by the plaintiff which was numbered as T.S. No. 67/74 in the Court of the Subordinate Judge, Athgarh. In the said sale deed Defendant No. 2 sold the entire homestead land as well as some other plots and some other lands in favour of Defendant Nos. 1 and 2.

(3.) In the suit, defendant No. 1 to 3 filed their written statement taking the plea that the plaintiff has no manner of right, title and interest in the suit property and is estopped in view of the compromise decree passed in T.S. No. 8/68 and though there was no partition by metes and bounds, there was mutual arrangement between the plaintiff and defendant No. 3. The trial Court came to the finding that the compromise decree. Ext. 1 was ineffective due to the non-registration. (1) the compromise decree was also a nullity because the property covered under Ext. 1 was more than Rs. 4,000/ - which was beyond the pecuniary jurisdiction of the learned Munsif; (2) The property covered under Ext. 1 not being the subject matter of T.S. 6/68, registration was compulsory and in the absence of registration, the decree was inoperative and relief could not be claimed on the strength of the said compromise decree. (3) That the adoption of the plaintiff by Digambar was upheld; (4) That sale of property by virtue of sale deed dated 2-4-1974 in favour of defendant Nos. 1 and 2 was held to be valid to the extent of the share of defendant No. 3; (5) Prayer for prescription was also decree. With the above findings the suit was decreed in part on 11-5-1975. Against the said decree passed by the learned Subordinate Judge dated 11-6-1975, Defendant Nos. 1 to 3 filed the First Appeal No. 120 of 1975 in this Court. The Hon'ble Single Judge who heard the matter, came to the following findings: (1) It appears more probable that the petition containing term was itself the settlement and not merely a record what had been settled earlier. (2) There was absolutely no evidence available to show that there was any prior discussion or meeting between the parties and the neighbours where a settlement was reached and was later on reduced to writing. (3) The agreement, Ext. 1 show that the agreement regarding the properties was itself the consideration for the compromise of the dispute relating to adoption and hence it has to be held that the compromise decree did not require any registration since such properties referred to in agreement would be considered as inseparatable consideration of the compromise and to be regarded as the subject matter of suit for which it does not require any registration in view of the Section 17(2)(vi) of the Indian Registration Act, and (4) that the plaintiff was not entitled to the relief under Section 22 of the Hindu Succession Act.