Mahadevagouda Patil and Others vs Basavanagouda and Others

P.S. Dinesh Kumar, J—This appeal is preferred by defendants against the judgment and decree dated 26.05.2011 in O.S. No. 50/2009 on the file of the Additional Senior Civil Judge, Ranebennur.

For the sake of convenience, parties shall be referred as per their status before the Trial Court.

Father of the plaintiffs and 1st defendant was owning 3 acres 11 guntas of land which got in family partition. By a settlement deed dated 16.05.1990 he divided the said land into two pieces measuring 75 guntas and 56 guntas respectively. The land measuring 56 guntas was settled among the plaintiffs and 1st defendant herein, who were given 14 guntas each. The 1st defendant filed a suit in O.S. No. 243/1991 on the file of the Civil Judge (Jr. Dn.), Ranebennur against his father which was decreed in terms of a compromise arrived at between 1st defendant and his father as per judgment and decree dated 16.12.1991. The remaining area of 75 guntas was settled among other five sons. Plaintiffs who learnt about the collusive decree between the 1st defendant and their father, filed the instant suit for partition and also for a declaration that the decree in O.S. No. 243/1991 is not binding on them. Plaintiffs contended inter alia that the 1st defendant in order to deprive them of their valuable right in the property in question had obtained a sham and collusive decree and the same was not binding on them. The 1st defendant resisted the suit by filing written statement and contended that the suit schedule property did not belong to his brothers; that the 2nd defendant who is the son of the 1st defendant had constructed a building and running a cotton ginning mill. It was further contended that the suit schedule property had fallen to the share of father of the plaintiffs in the family partition held in the year 1980 which was settled among his children on 16.05.1990. However, in terms of the said settlement, the 1st defendant was entitled for payment of a sum of Rs. 50,000/- and as a said sum was not paid to him, he had rightly filed the suit O.S. No. 243/1991 which had been decreed in terms of compromise arrived at between the 1st defendant and his father. It is the further case of the defendant that the plaintiffs did not raise their little finger from 1991, the year in which the said suit was decreed and therefore, the instant suit which has been filed beyond the period of three years from the date of the decree is barred by limitation. In sum and substance, the 1st defendant has stated that he has become the owner of the suit schedule property pursuant to the decree in O.S. No. 243/1991 and the said decree not having been challenged within three years, the instant suit was liable to be dismissed. Based on the pleadings, the Trial Court framed the following eight issues and one additional issue which are as follows:

"1. Whether the plaintiff proves that suit schedule properties are the share fallen to the share of plaintiff and defendant''s father?

Whether the plaintiff proves that as per the agreement executed by father of plaintiff and defendant, plaintiff and defendant No. 1 having 14 guntas each?

Whether the plaintiff proves that compromise decree in O.S. No. 243/1991 is not binding upon the plaintiff?

Whether the plaintiff is entitled for mesne profits?

Whether the 1st defendant proves that he is the absolute owner of the suit properties, out of that towards northern side lieu was gifted to his son 2nd defendant as per gift dated 25.10.2004?

Whether the defendant proves that court fee paid is insufficient as it is valued more than Rs. one Crore. Hence suit is not maintainable?

Whether the plaintiff is entitled for the relief sought for?

What order or decree?

Additional Issue No. 1:

Whether the defendants proves that suit of plaintiff is barred by time?"

Trial Court answered issues Nos. 1 to 4 and 7 in the affirmative, 5, 6 and additional issue in the negative and decreed the suit.

Being aggrieved by the judgment and decree, the defendants have preferred this appeal.

We have heard Shri V.P. Kulkarni, learned counsel appearing for the appellants and Shri B.V. Somapur, learned counsel for the respondents and perused the records.

Learned counsel for the appellants vehemently submits that the Trial Court erred in decreeing the suit which was completely bared by the time. He submits that the suit schedule property had fallen to the exclusive share of his father and therefore he had an unfettered right to deal with the property in the manner deemed fit. He admits that his father had settled the property between the plaintiffs and 1st defendant but hastens to add that the said settlement was contingent upon the 1st defendant being paid a sum of Rs. 50,000/- by five brothers who were allotted 75 guntas of lands. The settlement deed also required that the settlees were also required to pay a sum of Rs. 15,000/- every year to his father. Since there was breach of conditions of said settlement, he was compelled to file a suit against his father which has been decreed in terms of a compromise. He submits that there was no impediment for his father as an absolute owner of the property to enter into a compromise in the suit. He further submits that admittedly the suit in O.S. No. 243/1991 filed by him against his father was decreed on 16.12.1991 and the instant suit is presented in the year 2009 which is far beyond prescribed period of limitation of three years and therefore, the judgment and decree passed by the Trial Court is liable to be set aside. He submits that the plaintiffs are disentitled for any relief in the suit as their remedy is lost by operation of law and accordingly prays that the appeal be allowed.

Per contra, learned counsel for the respondents supports the decree by contending inter alia that the decree obtained by the 1st defendant is a sham and collusive one. Therefore, the same is not binding on the plaintiffs. He further submits the 1st defendant has admitted the settlement of 56 guntas among the plaintiffs and himself and therefore, the decree in O.S. No. 243/1991 in which they were not arrayed as party defendants is not binding on them. He further submits that the condition of payment of Rs. 50,000/- was required to be fulfilled by five other brothers who were cumulatively given 75 guntas of lands. Breach of any condition by the other brothers could not have given raise to a cause of action to the 1st defendant. Accordingly, he submits that the Trial Court on appreciation of the material on record, decreed the suit by applying correct principles of law and accordingly prays for dismissal of the appeal.

In the light of the above rival contentions, following questions arise for our consideration:

(i) Whether the judgment and decree in O.S. No. 243/1991 is binding on the plaintiffs?

(ii) Whether the suit filed by the plaintiffs is barred by law of limitation?

(iii) What order?"

Re. Point No. 1:

Ex. P-1 is the agreement entered into between late Guranagouda and his children. It is clearly recorded therein that he had got executed the said document in presence of the ''panchas'' to avoid any possible dispute between his nine children. It is specifically mentioned therein that the ''suit schedule property'' was divided among four children viz., the plaintiffs and the 1st defendant. The said deed also contains recitals with regard to settlement of 75 guntas of land in favour of five other children of late Guranagouda. Settlement deed required the five other brothers other than the plaintiffs who were allotted 75 guntas of land to pay a sum of Rs. 50,000/- to the 1st defendant. The said brothers were also required fulfill the other condition to pay a sum of Rs. 15,000/- each to their father every year.

We have perused the plaint and the compromise petition in O.S. No. 243/1991. It is mentioned in the plaint that the 1st defendant by investing his own resources had installed ginning machines and running them in the suit schedule property. The schedule mentioned in that suit is 3 acres 11 guntas in Sy. No. 438/7 which is the entire property owned by father. The cause of action mentioned is that the 1st defendant had called upon his father to divide the property and hand over 1/2 share therein. It is averred in paragraph No. 2 of the plaint that the father of the 1st defendant had divided his property among his nine sons and all of them were holding their respective properties and dealing with them independently. It is the case of the 1st defendant that the entire 3 acres 11 guntas of the land was held by him and his father jointly. The compromise petition reveals that 1 acre 16 guntas out of 3 acres 11 guntas in the suit schedule property in O.S. No. 243/1991 was allotted in favour of 1st defendant. The said suit was filed on 01.10.1991 and compromised within 3 months by filing a compromise petition on 02.01.1992. Ex. P-9 is the revenue record of right for the year 2001-02. It shows that the Sy. No. 438/7 measuring 3 acres stood in the name of the 1st defendant. Ex. P-10 is the record of rights for the year 2008-09. This document reveals that on 08.12.2004 vide MR219/2004-2005, 1 acre out of Sy. No. 438/7 was mutated in the name of his son of the 1st defendant and 16 guntas is shown in the name of 1st defendant. There is no corresponding order passed by competent authority to effect the said revenue entries. No document is forthcoming which can explain as to how the land measuring 3 acres was divided and what happened to the remaining portion of the land other than 1 acre registered in the name of the son and 16 guntas in the name of the 1st defendant. The 1st defendant in his evidence has admitted execution of the settlement of family property in the year 1990. He has stated that the cause of action for filing O.S. No. 243/1991 is that his father was unable to ensure that Rs. 50,000/- was paid to him as per the settlement.

Marshalling of facts of this case clearly reveals that the father of the plaintiffs had in all 3 acres 11 guntas of land. He had settled this land in two parts namely 1 acre 35 guntas in favour of five sons and 1 acre 16 guntas in favour of four sons viz., the plaintiffs and 1st defendant, as per Ex. P-1 dated 28.08.2009. The 1st defendant filed a suit in O.S. No. 243/1991 and the same is decreed in terms of the compromise arrived at between the 1st defendant and his father. The subject matter of that suit was the entire property which belonged to the father. The 1st defendant in his examination-in-chief has stated that the suit schedule property belonging to his father exclusively. He had an absolute right to give the same to any person. The agreement dated 16.05.1990 stood cancelled, since he was not paid Rs. 50,000/-, his father entered into compromise with him. In the cross-examination, he has admitted that as per settlement deed dated 16.05.1990 his father had settled the property in favour of his nine children. The share of each brother is mentioned in the said settlement deed. He admits that he had given up his share as recorded in the sale deed. He has specifically admitted that the amount of Rs. 50,000/- is payable to him by five other brothers who were given shares in 1 acre 35 guntas and the plaintiffs herein did not have any obligation to pay any money to the 1st defendant. The 1st defendant has filed the suit in O.S. No. 243/1991 against his father on the premise that the amount of Rs. 50,000/- was not paid to him. Admittedly, the plaintiffs herein whose property was subject matter of the suit were not arrayed as parties in the said suit. In the light of his categoric admission in the cross-examination and his other acts of obtaining manipulated revenue entries in his name and in the name of his son in respect of 1 acre 16 guntas belonging to the plaintiffs and the 1st defendant, we have no hesitation to hold that O.S. No. 243/1991 is a sham and collusive suit designed by the 1st defendant and hence, not binding on the plaintiffs.

Re. Point No. 2:

Admittedly, the 1st defendant had obtained a collusive decree in O.S. No. 243/1991 without making the plaintiffs as parties when they were absolutely proper and necessary parties for adjudication of the suit inasmuch as the suit schedule properties in that suit included the properties of the plaintiffs herein. No legal right would accrue to the benefit of a party to the suit unless the decree is registered, as required under Section 17(1)(b) of the Indian Registration Act, 1908. The 1st defendant has set up a specific defence that he has become the owner of the property measuring 1 acre 16 guntas, pursuant to the decree. In other words, he claims to have acquired right, title and interest in entire property measuring all 1 acre 16 guntas pursuant to the compromise decree in the suit filed by him against his father, in which the plaintiffs'' properties were also included. Thus, defendants''/appellants'' plea that the plaintiffs were divested of their right, title and interest by virtue of a compromise decree and that the instant suit is barred by limitation, is fallacious. The decree in O.S. No. 243/1991 obtained by the defendant in the suit filed against his father would enure to his benefits only if the same was registered as required under Section 17(1) of the Registration Act. It is the duty of Courts to examine if the decree based on which a party claims a title has been registered or not.

We may usefully refer to a judgment of Supreme Court in the case of K. Raghunandan and Others Vs. Ali Hussain Sabir and Others, AIR 2008 SC 2337 : (2008) 13 SCC 102 : (2008) AIRSCW 3844 , wherein it is held as follows:

"29. A statute must be construed having regard to the purpose and object thereof. Sub-section (1) of Section 17 of the Act makes registration of the documents compulsory. Subsection (2) of Section 17 of the Act excludes only the applications of Clauses (b) and (c) and not clause (e) of Subsection (1) of Section 17. If a right is created by a compromise decree or is extinguished, it must compulsorily be registered. Clause (vi) is an exception to the exception. If the latter part of Clause (vi) of Sub-section (2) of Section 17 of the Act applies, the first part thereof shall not apply. As in this case not only there exists a dispute with regard to the title of the parties over the passage and the passage, itself, having not found the part of the compromise, we do not find any infirmity in the impugned judgment."

Therefore, it can be safely held that at best the judgment and decree in O.S. No. 243/1991 is an intra party adjudication between the 1st defendant and his father. Since the plaintiffs were not arrayed in suit as party defendants and decree was not registered under the Indian Registration Act, 1908, the plaintiffs herein would not be disentitled to seek relief of declaration on the plea of limitation. Hence, we are of the considered view that the suit filed by the plaintiffs is not barred by limitation.

In view of our above findings, the appeal fails and accordingly stands dismissed.