The High Court
Case Details
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-551-1998 (O&M) Phullo Giala Singh and Another Vs. . . . . Appellant . . . . Respondents **** Reserved on: 20.05.2025 Pronounced on: 22.05.2025 **** CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Argued by:- Mr. Arihant Jain, Advocate and Mr. Kanish Jindal, Advocate for the appellant. None for the respondents. DEEPAK GUPTA, J. **** This Regular Second Appeal has been filed by plain$ff of the case against reversal. 2. The sole plain$ff, Phullo (appellant herein) and the second defen-
Legal Reasoning
dant Surjit Kaur (respondent No.2) are sisters, while the first defendant, Giala Singh (respondent No.1) is their brother. All three are children of Budh Singh. Phullo filed a suit seeking a declara$on and permanent injunc$on, asser$ng her ownership and possession of the suit land as a co-owner with a 1/5th share. She alleged that the first defendant, in collusion with the second defendant, had fraudulently obtained a decree dated 28.09.1990 in Civil Suit No. 413 of 1990 from the Court of the Sub-Judge 1st Class, Sunam, $tled Giala Singh v. Surjit Kaur and another. According to the plain$ff, she never consented to the decree, and it was procured through misrepresenta$on. She claimed that her thumb im- pressions were taken on blank papers under the pretext of issuing a 'No Objec- $on Cer$ficate' for a bank loan, as she was a co-sharer in the land. These im- pressions were allegedly misused to obtain the decree. She (Phullo) discovered the fraudulent decree approximately two months before filing the suit, when NEETIKA TUTEJA 2025.05.22 17:13 I attest to the accuracy and integrity of this document RSA-551-1998 (O&M) she approached the Patwari to obtain a copy of the jamabandi. Based on these allega$ons, she sought appropriate declaratory relief and a permanent injunc- $on. 3. In response, both defendants contested the suit, raising preliminary objec$ons. On merits, they maintained that the decree dated 28.09.1990 was voluntarily suffered by the plain$ff as part of a family se<lement and denied any coercion or fraud. They prayed for dismissal of the suit. 4. Necessary issues were framed. Evidence produced by the par$es was taken on record. 5. Trial Court vide judgment dated 30.03.1996 decreed the suit and set aside the judgment & decree dated 28.09.1990 by holding that the im- pugned decree created right in immovable property worth more than ₹100/- re- garding 1/5th share of plain$ff in favour of Giala for the first $me and therefore, it required registra$on and since the impugned decree was unregistered, so, it did not create any right in his favour. Reliance was placed upon “Bhoop Singh v. Ram Singh Major” AIR 1996 (Supreme Court) 196. 6. The above judgment dated 30.02.1996 passed by learned Addi- $onal Civil Judge (Senior Division), Sunam, by holding the decree dated 28.09.1990 to be null and void and decreeing the suit of the plain$ff Phullo, was challenged by defendant Giala Singh by filing appeal. The first Appellate Court of learned Addi$onal District Judge, Sangrur accepted the appeal vide his judg- ment dated 03.12.1997 and dismissed the suit by holding that the impugned judgment & decree dated 28.09.1990 being a consent and compromise decree, did not require registra$on, as the same was based upon a prior family se<le- ment. 7. The aforesaid reversal has been assailed by the plain$ff of the case
Legal Reasoning
before this Court. The sole conten$on raised by learned counsel for the appel- lant- plain$ff is that since the impugned decree dated 28.09.1990 created right in immovable property worth more than ₹100/- for the first $me qua the share of the plain$ff in favour of the defendant- respondent Giala Singh, therefore, it required registra$on and therefore, the view taken by the trial Court in this re- NEETIKA TUTEJA 2025.05.22 17:13 I attest to the accuracy and integrity of this document Page 2 of 6 RSA-551-1998 (O&M) gard has been wrongly reversed by the first Appellate Court without appreciat- ing the legal posi$on correctly. 8. The respondents were duly represented through counsel but at the $me of final hearing, despite in$ma$on sent to the counsel for the respon- dents, nobody appeared for them and as such, the arguments were heard in the absence of counsel for the respondents. 9. I have considered submissions of learned counsel for the appel- lant- plain$ff at length and have appraised the record. 10. It is undisputed that the impugned decree dated 28.09.1990 was passed on the basis of an admi<ed wri<en statement filed by the plain$ff Smt. Phullo, along with her sister Surjit Kaur, and that their statements were recorded in court. The plain$ff has challenged the decree on grounds of fraud and mis- representa$on. The first appellate court, relying on the evidence, noted that in the original suit leading to the impugned decree, it was pleaded that the suit property was co-parcenary and had been given by Phullo to her brother Giala under a family se<lement in 1989. However, the trial court found that, since the property was co-parcenary in nature as far as Phullo was concerned, such a set- tlement could not have legally taken place. The appellate court rightly observed that the jurisdic$on of a civil court to examine the validity of a prior judgment or decree is confined to instances, where it is proved that such judgment or decree was obtained through fraud or misrepresenta$on. Reliance was correctly placed on the Supreme Court judgments in Bishundeo Narain v. Seogeni Rai and Jage- math (AIR 1951 SC 280) and Shanker Sitaram Sontakke v. Balkrishna Sitaram Sontakke (AIR 1954 SC 352), which held that a consent decree carries the same binding force as a decree passed on contest, unless it is vi$ated by fraud, mis- representa$on, misunderstanding, or mistake. This principle was reaffirmed by a Division Bench of this High Court in Gurdev Kaur & ors. v. Mehar Singh & ors. (1989 PLJ 182), which was later approved by the Hon’ble Supreme Court in Bhoop Singh v. Ram Singh Major. It was held that a compromise decree cannot be challenged unless fraud, coercion, or misrepresenta$on in its procurement is specifically pleaded and proved. NEETIKA TUTEJA 2025.05.22 17:13 I attest to the accuracy and integrity of this document Page 3 of 6 RSA-551-1998 (O&M) 11. By applying the ra$o on all the aforesaid judgments to the facts of this case, it has been observed by learned first Appellate Court, based upon the evidence on record, as under: “11………….Applying the ra$o of above said Judgment to the facts of the present case, a careful perusal the pleadings and evidence shows that the ear- lier decree dt. 28.9.1990 passed by SJIC, Sunam was challenged on the ground that Gaila had obtained thumb impressions of Phullo, plain$ff on the pretext of obtaining a loan from the bank, but the said stand was rebu<ed by the tes$- mony of DW-2 Prem Chand, Advocate, who deposed that he was appointed as an Advocate on behalf of Surjit Kaur as well as Phullo in the earlier suit and statements of Phullo and Surjit Kaur were recorded in the Court in the presence of Lamberdar. Ajmer Singh, DW-4 has proved that a decree was passed in favour of defendant-appellant and he is owner in possession of 3/5th share of the land in dispute and Phullo has got no concern with the same. DW-5 Gurtej Singh, Lamberdar has proved that Phullo had made a statement on oath in the Court in his presence and he had iden$fied her. In view of the said overwhelm- ing evidence it stands proved that there has not been any fraud, misrepresenta- $on or coercion to make a ground to set aside the earlier judgment and decree, as the plain$ff respondent No.1 has not been able to establish any of the above said three grounds, the subsequent civil court will not have any jurisdic$on to go behind the consent decree to find out whether the facts stated in the plaint which culminated in compromise decree were right or wrong as laid down in Division Bench Judgment of Punjab and Haryana High Court in Gurdev Kaur Vs. Mehar Singh's case. The judgment Gurdev Kaur Vs. Mehar Singh was brought to the no$ce of Hon'ble Supreme Court in Bhoop Singh's саsе (Supra). In para 11 of the judgment of Bhoop Singh's case the ra$o of Gurdev Kaur's case (Supra) was not set aside and was rather observed that this decision had rightly been pressed into service by the counsel before the Hon'ble Supreme Court and in para No.12 it was observed that the decisions of said cases did not cover the whole ground, however, they meet the approval of Hon'ble Supreme Court as far as they go. It was observed that something more was required to be said to find out the real purport of clause (vi) of Sub Sec$on (I) of Sec$on 17. The Hon'ble Supreme Court aOer approving the ra$o of Division Bench Judgment of Gurdev Kaur's case (Supra) further laid down certain guidelines imposing a duty NEETIKA TUTEJA 2025.05.22 17:13 I attest to the accuracy and integrity of this document Page 4 of 6 RSA-551-1998 (O&M) on the courts to examine in each case whether the par$es have pre-exis$ng right to the immovable property or whether under the order or decree of the Court one party having right, $tle or interest therein agreed or suffered to ex- $nguish the same and create right, $tle or interest in praesen$ in immovable property of value of Rs.100/- or upwards in favour of other party for the first $me either by compromise or pretending consent. A perusal of judgment of trial court indicates that the earlier suit in favour of the plain$ff respondent No.1 was decreed on the basis of consent regarding a family se<lement arrived between the par$es in 1989. A family se<lement or family arrangement can be oral and has always been granted sanc$ty when it is entered into between the close rela$ons and it is not the at open to either of the par$es to back out of the family se<lement as per Division Bench judgment 1979 CLJ 229 Ramji Dass etc. Vs. Dhan$ Ram etc. Hon'ble Supreme Court in Mr. Shakuntla Sawhney Vs. Mrs. Kaushalya Sawhney 1979 Current law Journal 374 observed that it is the duty of the court to take a lead in giving a shape of se<lement in ma<ers of family disputes by following the view of Gandhiji quoted therein. AIR 1976 Supreme Court 807 Kale & Ors. Vs. Deputy Director of Consolida$on & Ors. laid down that a family arrangement may be even oral and does not require any registra$on. The suit of the plain$ff, who is none else, but sister of defendant, was decreed on 28.9.90 on the basis of a family se<lement. It was alleged in that suit that the rights had accrued to Gaila by way of family se<lement. Thus, recogni$on of the exis$ng right was claimed by Gaila which was admi<ed by Phullo and Surjit Kaur his sisters. It is not open for another civil court to go be- yond the said decree. Thus, the compromise decree Ex.P-1 had not itself cre- ated new rights, $tle or interest, but was a declara$on regarding the pre-exist- ing right and would fall within the excep$on of Clause (vi) of Sub Sec$on (2) of Sec$on 17 of Registra$on Act. I have also examined the right of the plain$ff-re- spondent in the light of the guidelines laid down by the judgment of Hon'ble Supreme Court in Bhoop Singh's case (Supra) as well on the basis of the ra$o of Division Bench judgment of Gurdev Kaur's case and find that the earlier con- sent decree Ex.P-1 was not obtained by Gaila by any fraud, misrepresenta$on or coercion and it was bonafide based upon a family se<lement, the said de- cree was not a device to obviate to payment of stamp duty and frustrate the law rela$ng to registra$on; the consent decree did not create right for the first $me in immovable property in favour of plain$ff; the decree falls with the ex- NEETIKA TUTEJA 2025.05.22 17:13 I attest to the accuracy and integrity of this document Page 5 of 6 RSA-551-1998 (O&M) cep$on of Sec$on 17(1).” 12. It is, thus, clear that plain$ff of this case Phullo failed to prove that the decree dated 28.09.1990 was the result of any fraud or misrepresenta$on or that her thumb impressions were obtained on the pretext of obtaining a loan from the bank. Her stand in this regard was rebu<ed not only by the tes$mony of DW-2 Prem Chand, Advocate, who had appeared for her as well as on behalf of her sister Surjit Kaur in the earlier suit, even Lamberdar Ajmer Singh (DW-4) proved that decree was passed in favour of defendant Giala in his presence. DW-5 Gurtej Singh Lamberdar further proved Phullo had made a statement in the Court in his presence and that he had iden$fied her. Learned 1st Appellate Court rightly held that in view of this overwhelming evidence, it stood proved that there was not any kind of fraud or misrepresenta$on to the plain$ff, as was alleged by her, for seRng aside the decree and as such, the subsequent Court could not set aside the earlier decree based upon any fraud or misrepresenta- $on. 13. Learned 1st Appellate Court by applying the legal posi$on correctly has rightly held the impugned decree cannot be set aside on the ground of non- registra$on having regard to the fact that it was based upon a prior family set- tlement between the par$es. 14. In view of the aforesaid discussion, this Court holds that there is no scope for interference in the judgment and decree as passed by the 1st Ap- pellate Court, as the same is based upon proper apprecia$on of the legal as well as factual posi$on. Finding no illegality or perversity therein and holding the present appeal to be devoid of any merit, same is hereby dismissed.
Decision
Pending applica$on (s), if any, also stands disposed of. (DEEPAK GUPTA) JUDGE 22.05.2025 Nee(cid:30)ka Tuteja Whether speaking/reasoned? Whether reportable? Yes/No Yes/No NEETIKA TUTEJA 2025.05.22 17:13 I attest to the accuracy and integrity of this document Page 6 of 6