R P CHELAMANNA Vs. RPRAMA RAO

JUDGEMENT

(1.) In this case the plaintiff s suit is for the recovery of certain lands in the possession of the defendants. Both the Lower Courts have found the plaintiff s title and possession within twelve years prior to the suit proved.

(2.) The only question in second appeal is, whether the plaintiff s claim is unsustainable in consequence of a compromise entered into between the parties in a prior suit--Original Suit No. 363 of 1904. That suit was instituted by the plaintiff against the present defendants and others for the recovery of another plot of land. The parties entered into a compromise in that suit. By the terms of that compromise it was settled inter alia that both the land sued for then and the lands which form the subject-matter of this suit should be divided into two moieties and that the plaintiff should take one moiety and the defendants the other moiety. The agreement of compromise was not registered under Act III of 1877. The plaintiff being then a minor, the compromise was submitted to the court under the provisions of Section 462 of the then Civil Procedure Code, and the court gave leave to the plaintiff s next friend to enter into the compromise, holding it to be beneficial to the minor. A decree was afterwards passed in terms of the compromise in so far as it related to the property which was then sued for. The court, of course, could not pass a decree then in respect of the properties now in suit, as they were not included in the claim then made. The plaintiff, it may be noted, attempted to get a share of the properties now sued for in execution of the decree in that suit. His attempt naturally failed as the decree did not cover these properties. Both the Lower Courts have held that the defendants could not rely on the compromise as a defence to this suit as it was compulsorily registrable under the provisions of Section 17 of the Registration Act.

(3.) It is contended before us on behalf of the appellants that this J. view is wrong and reliance is placed on the decisions of the Privy Council in Bindesri Naik v. Ganga Saran Sahu (1898) I.L.R., 20 All.171.,(P.C.) and Pranal Anni v. Lakshmi Anni (1899) I.L.R., 22 Mad., 508 (P.C.) and on the case of Natesa Chetty v. Vengu Nachiar (1910) I.L.R., 33 Mad., 102. Several other cases were cited at the argument on both sides. As there is some conflict of judicial opinion on the point, it is desirable to refer at some length to the rulings of the Privy Council mentioned above. In Bindesri Naik v. Ganga Saran Sahu (1898) I.L.R., 20 All.171.,(P.C.) the suit was to enforce the payment of money due on a mortgage bond by sale of the mortgaged property. The dispute between the parties was whether the plaintiff was entitled to recover as against the property the interest due to him on the mortgage-amount after the date fixed for payment--originally in the instrument of mortgage. The Judicial Committee held, on the construction of the mortgage document, that he was so entitled. The plaintiff had based his claim to post diem interest, also on joint petitions presented by him and by his debtors the defendants in the suit in the course of certain proceedings instituted by the plaintiff for foreclosure. In these petitions the parties stated the total amount of principal and interest which was then due on mortgage. The sums thus stated included post diem interest up to the date of the petitions. The court was asked to sanction the arrangement between the parties under Section 257-A, Civil Procedure Code, and to grant an extension of time in accordance therewith for the payment of the mortgage debt. The required sanction was granted by the court. The defendants contended that the consent petitions could not be relied on by the plaintiff as they were not registered in accordance with the provisions of the Registration Act. The Privy Council observed: "Although, in the view) which their Lordships take the question, whether those proceedings can be founded on, without their having been registered in terms of the Act of 1877, does not necessarily arise in this appeal, they think it right to add that, having heard counsel fully upon the point, they are satisfied that the provisions of Section 17 of the Act do not apply to proper judicial proceedings, whether consisting of pleadings filed by the parties or of orders made by the court." In Pranal Anni v. Lakshmi Anni (1899) I.L.R., 22 Mad., 508 at p. 513 (P.C.), a suit which had been instituted for possession of certain lands was amicably settled by a compromise between the parties, which related both to those lands and to other lands which were the subject-matter of the case before the Privy Council, The razinama which was presented to the court in the first suit stated that the parties had agreed to take each a certain share of the land sued for. One of the four schedules incorporated with it, namely, Schedule D, related to and described the lands which were the subject of the second suit, but the body of the compromise contained no reference to it. It set forth as "remarks" that the lands in Schedule D were also to be taken in equal shares by the parties. The decree of the court awarded to the plaintiff, in terms of the razinama, a share of the lands then actually sued for. The question in the second suit was whether the razinama in the previous suit which was not registered could nevertheless be relied upon by the defendants in bar of the [plaintiff s right to recover the whole of the lands. The Privy Council held that it could not. Their Lordships observed, "the objection founded upon its non-registration does not, in their Lordships opinion, apply to its stipulations and provisions in so far as they were incorporated with, and given effect to by, the order made upon it by the Subordinate Judge in the suit of 1885. The razinama, in so far as it was submitted to and was acted upon judicially by the learned Judge, was in itself a step of judicial procedure not requiring registration; and any order pronounced in terms of it constituted res judicata, binding upon both the parties to this appeal who gave their consent to it. If the parties, after agreeing to settle the suit of 1885 on the footing that they were each to take a half share of the lands involved in that suit, and also a half share of the lands now in dispute, had informed the learned Judge that these were the terms of the compromise, and had invited him, by reason of such compromise, to dispose of the conclusions of the suit of 1885, their Lordships see no reason to doubt that the order of the learned Judge, if it had referred to or narrated these terms of compromise, would have been judicial evidence, available to the appellant, that the respondents had agreed to transfer to her the moiety of land now in dispute. But their Lordships are unable to find that any such course was taken either in the razinama or in the judicial order which gave effect to it. The razinama merely referred, by way of remark, to the lands now in dispute; and the Judge was only asked to give effect to a compromise which related to the lands then in dispute before him. This order, accordingly, merely concerns the latter, and has no reference whatever to the lands described in Schedule D of the razinama. So far as regarded these lands, the compromise was not submitted to the learned Judge, but was deliberately left by the parties to stand upon their unregistered agreement of union."