GOLAK BEHARI BISWAL Vs. KARUNAKAR ROUT

JUDGEMENT

(1.) This is an appeal by the defendants-appellants challenging the decree in a suit by the plaintiff respondent, for declaration that the compromise decree in T. S.No. 8/68 in the Court of the Munsif, Athagarh, does not affect his 8 annas interest in the suit property and that his interest is not affected by the registered sale deed dated 3-4-74 executed by defendant No. 3 (appellant No. 3) in favour of defendants Nos. 1 and 2 (appellants 1 and 2) as also for declaration that he is entitled to exercise his right of pre-emption in respect of the share of appellant No. 3 in the suit property, that appellants Nos. 1 and 2 are not entitled to separate possession of specified portion of the suit property, and seeking their prohibition from entering upon such separate possession until the property is partitioned.

(2.) A plaintiff respondent pleaded that appellant No. 3 is his adoptive mother and the appellants 1 and 2 are her sister's sons. The suit property is an area of 3.69 acres of land which stood recorded in the name of Digambar Thatoi who was the adoptive father of the plaintiff. Digambar Thatoi died in the year 1967 leaving behind him the plaintiff as the adopted son and his widow appellant No. 3. Dispute arose between the adopted son and the adoptive mother which led her to file of T.S.8/68 in the Court of the Munsif, Athagarh disputing the adoption of the plaintiff. The suit was compromised on 30-11-73 in which the appellant No. 3 acknowledged the plaintiff to be the adopted son of Digambar and in view of such acknowledgment, the appellant No. 3 (respondent) gave up his/8/annas claim in the suit property and was granted only/4/annas interest in the agricultural lands. The suit was decreed in terms of the compromise petition which also contained a clause that the plaintiff would get the same registered within 7 days failing which appellant No. 3 could get it registered after obtaining copy thereof. Subsequently, the appellant No. 3 executed a sale deed in favour of appellants No. 1 and 2. It is the plaintiff's case that since the compromise decree was not registered as per stipulation and that further since the properties involved in the compromise decree were beyond the subject-matter of dispute, the decree was compulsorily registrable under S.17 of the Registration Act the time for which expired under S.23 of the Registration Act on 31-3-74. The compromise decree having not been registered it did not convey any title to the appellant No. 3 in respect of the plaintiffs share and there was no extinguishment of right, title and interest of the plaintiff in the suit property by virtue of the compromise decree.

(3.) The suit was jointly contested by the appellants contending that the plaintiff was bound by the compromise decree in pursuance of which the appellant No. 3 was in separate possession of her share and hence the alienation made by her in favour of the appellants Nos. 1 and 2 was valid and not entitled to be questioned by the respondent.