Chopra, J. - (1.) THIS second appeal of the Plaintiff arises out of the following facts. Mst. Chambi Appellant had previously brought a suit to preempt a sale in favour of Goralal Respondent. The parties to that suit entered into a compromise according to which the first floor of the house in dispute was taken by Mst. Chambi on payment of Rs. 100/ - to Goralal, while the ground floor of it remained with the latter. The Sub -Judge before whom the composition deed was presented somehow or other held the view that the composition related to matters extraneous to the suit, he, therefore, did not pass a decree in accordance with' the terms thereof and ordered the file to be consigned to the record room on 7 -7 -1999. Mst. Chambi brought the present suit on 11th Har 2001 for possession of the first floor of the house on the basis of the said compromise alleging that the possession of the first floor had in fact been delivered to her on payment of Rs. 100/ - and that she was subsequently dispossessed of it in May 1943. The suit was resisted on a number of grounds each one of which was made the subject -matter of a separate issue. On all the points the trial Sub -Judge found in favour of the Plaintiff and decreed the suit. In the Defendant's appeal to the District Judge it was urged that the composition deed was compulsorily register able and since it was not registered, it was not admissible in evidence and could not form the basis of a suit. The learned District Judge accepted the plea and therefore accepting the appeal dismissed the suit. The Plaintiff has now come in second appeal.
(2.) THE counsel for the Appellant at first stressed that possession of the house in suit was delivered to Mst. Chambi on payment of Rs. 100/ - as provided by the terms of the compromise and since the compromise had been acted upon by the parties there to the objection regarding its admissibility was not of much significance. It was further pointed out that although specifically urged in the plaint and denied by the Defendant in his written statement, no separate issue on the point was framed and the Plaintiff, therefore, was not able to adduce the necessary evidence. By my order dated 17 -6 -1952 I framed two fresh issues on the points raised by the Appellant and sent the case to Sub -Judge II Class Patiala to record evidence of the parties on the additional issues and submit the case with his report. The Sub Judge has now made a report that the Plaintiff failed to prove that possession of the house was delivered to her at the time of or after the compromise. The Sub -Judge has discussed the entire evidence of the parties and given cogent and convincing reasons for holding that the possession did not pass to the Plaintiff. (His Lordship then discussed evidence and proceeded I have no hesitation to agree with the report of the learned Sub -Judge and to hold that the Plaintiff has failed to prove that the compromise was acted upon that possession of the Chubara was in fact delivered to Mst. Chambi. Even if I were inclined to think otherwise the mere fact that Mst. Chambi remained in possession of the Chubara for about a year, of which she was then admittedly dispossessed by the Defendant, would not create much of difference. The doctrine of Part Performance only entitles a person in possession to invoke the doctrine as a shield to protect such possession and it does not enable a person who has lost possession to sue for recovery of it. It has then to be seen whether the Plaintiff could base her claim on the compromise the terms of which were embodied in a document, and could recover possession of the house allotted to her. It is not disputed that the value of the immovable property to which the compromise related was at least Rs. 100/ -. The learned Counsel for the Appellant contends that the document by itself did not create, declare or assign any right or interest in the property, but merely created right in Mst. Chambi to obtain a decree from the Court in accordance with the terms of the compromise. His argument is that the compromise was only a petition presented to the Court for passing a decree in terms of the compromise, and placing his reliance on the exception provided by Section 17(2)(V), Registration Act he stresses that the deed did not require registration. In support of his argument he has relied upon certain authorities which, however, have no application to' the facts of the present case. They are - 'Pannalal v. Kishanlal : AIR 1952 Nag 84 (A) Sabitri Thakurain v. P.A. Savi, : AIR 1933 Pat 306 (B) and - 'Ranganayaki Ammal v. Sampath Kumaran', AIR 1940 Mad 897 (C). In each of them the petition for recording the compromise was itself in question in the Court to which it was presented. Exception to the decision of the case on the basis of the compromise was taken by some of the parties on the ground that the petition for compromise required registration no decree could, therefore, be passed in terms thereof. In : AIR 1952 Nag 84 (A), it was held that a petition of this kind which merely declares certain rights but does not vest them either immediately or contingently would not fall under Section 17(l)(b) but would be covered by the exception given in Sub -clause (v) to Section 17(2). In - (C) the objection raised was that the agreement on which one of the parties moved for a decree, was a document which fell within Section 17 (1Mb) and therefore could not be received in evidence and form the basis of a decree. It was, however, found that the document read as a whole and in the light of the surrounding circumstances was simply a petition requesting the Court to pass a decree in terms of the compromise. The document was headed with the cause title of the suit and stated that it was the intention of the parties that the terms of the compromise should be embodied in a decree of the Court. On these facts it was held that the document itself was not intended to declare the rights of the parties in the immovable property but those were not already on the record. An objection on the sale will not affect their reversionary rights right were to be declared in a decree of the court and consequently it fell within the purview of Section 17(2) (v) and not Section 17(1Kb). The distinction, between a petition to the Court in which the case is. pending to obtain a decree in terms of compromise and a compromise itself which forms the basis of a fresh suit was clearly brought out in the third case relied upon by Shri Atma Ram. The following observations made therein - (AIR 1933 Pat 308 (B)are pertinent: A petition of compromise asking the Court to pass a decree on certain terms does not come within the purview of Section 17 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 order made by the Court. Petition does not by itself create a right or create a charge by itself. There is no authority to the effect that a petition of com - promise before a Court of justice cannot be acted upon by that Court itself unless it is registered. There is a distinction between a petition being used in the Court to which it is presented and its being subsequently used in Anr. Court for the purpose of proving the right if any under that petition. In the present case, complete terms of the compromise were embodied in the document itself and it was described as a composition deed. It started by giving the names of the executants and their full description, then followed the terms of the settlement and it - ended by saying Lihaza in Chand - kalma batriq rassinama fee likh die keh sanad howe'. The document did not contain any prayer or request to the Court for passing a decree in accordance with the terms mentioned therein. The document read as a whole makes it abundantly clear and leaves no doubt that the parties intended the document itself to be an embodiment of their rights and that it was not the intention of the parties that those rights should be embodied in the decree that was to be passed in the case. I cannot, therefore, endorse the view that the compromise merely created a right to obtain Anr. document which would, when executed, create Plaintiff's title to the house in question. - Since the right was created by the document itself and that right related to immovable property of the value of Rs. 100/ - or upwards it was required to be compulsorily registered and without having been registered could not be admitted in evidence. The pre -emption suit, in which the compromise was arrived at, was dismissed and the compromise was not recorded under the provisions of Order 23, Rule 3, Code of Civil Procedure Such a compromise would not be admissible in evidence In a subsequent suit to enforce the same because the document purported to deal with property worth more than Rs. 100/ - and was not registered.
(3.) SHRI Atma Ram also laid some stress on the fact that the objection regarding inadmissibility of the document on the ground of non registration was not raised by the Defendant in the trial "Court and contended that no exception to it could, therefore, be taken for the first time in appeal. A plea that a particular document requires registration is a question of law and a pure question of lay which does not depend, on any disputed facts can be allowed to be taken for the first time in appeal. As already observed, there is no dispute as regards the value of the property that was to be affected by the compromise, it is admitted that it was worth Rs. 100/ - or more. The objection, therefore, did not depend on facts which a point of law which is patent on facts on the record and does not require any fresh evidence, can be allowed to be raised for the first time in appeal. In -'Mst. Najma Khatun v. Basant Singh', AIR 1934 All 408 (PB)" (D) Pull Bench of the Allahabad High Court observed that an appellate Court which had the duty to weigh the evidence on both sides afresh and for its own satisfaction, was not bound to act upon inadmissible evidence merely because no objection to its admissibility was taken in express terms in the lower Court and therefore held that it was the duty of the appellate Court to ignore such a document if it was satisfied that it was not legally admissible.;