SOM DEV Vs. RATI RAM
LAWS(SC)-2006-8-123
SUPREME COURT OF INDIA
Decided on August 06,2006

SOM DEV Appellant
VERSUS
RATI RAM Respondents




JUDGEMENT

P.K.BALASUBRAMANYAN, J. - (1.)HEARD learned counsel for the parties.
(2.)LEAVE granted.
This appeal is by the contesting defendants in a suit filed by respondent no. 1 herein for recovery of possession of the suit property in enforcement of a right of preemption claimed by him. The plaintiff claimed that a half share in the suit property had been relinquished in favour of himself and his brother by Sheo Ram a coowner with the assignor of the contesting defendants and the said relinquishment had been recognised by the court by decreeing the claim made by the present plaintiff and his brother in Civil Suit No. 398 of 1980. Thus, having become a coowner with the assignor of the contesting defendants, the plaintiff was entitled to enforce a right of preemption and recover possession of the property from the assignee of the other coowner. The contesting defendants resisted the suit. The contention germane to this appeal that was raised by the contesting defendants was that a right was created in the present plaintiff by the decree in Civil Suit No. 398 of 1980 which was one based on a compromise and since the decree purported to create a right in the plaintiff in a property in which he had no pre existing right, the compromise decree required registration in terms of S.17(1) of the Registration Act and the decree not having been registered, the plaintiff was not entitled to enforce the alleged right of pre emption as against the contesting defendants or their assignor, the other coowner.

(3.)THE Trial Court held that the decree in Civil Suit No. 398 of 1980 was enforceable even without registration as it was not hit by S.17(1) of the Registration Act; that the said decree had recognised the right claimed by the plaintiff and in the circumstances the plaintiff was entitled to a decree for possession from the assignee of the other coowner in enforcement of his right of pre emption. On appeal, the lower appellate court affirmed this view of the Trial Court. The lower appellate court also held that what was involved in Civil Suit No. 398 of 1980 was a family arrangement and since a bona fide family arrangement among the members of a family in the larger sense of the term, did not require registration, no objection could be raised by the contesting defendants to the enforceability of the title claimed by the plaintiff. Thus, the decree of the Trial Court was affirmed. The contesting defendants filed a second appeal. They raised the substantial question of law that the decree in Civil Suit No. 398 of 1980 created rights in favour of the plaintiff in a property in which he had no pre existing right and such a decree, to become enforceable, required registration. Reliance was placed on the decision of this Court in Bhoop Singh v. Ram Singh Major and Others (1995 Supp. (3) SCR 466) in support. The High Court held that the decree in Civil Suit No. 398 of 1980 was based on a family settlement which did not require registration and that the decree itself did not require registration in view of S.17(2)(vi) of the Registration Act. Thus, the substantial question of law formulated was answered in favour of the plaintiff, the judgments and decrees of the courts below were confirmed and the second appeal filed by the contesting defendants was dismissed. It is challenging this decision of the High Court that this appeal by special leave is filed by the contesting defendants.


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