HEMANT GUPTA, J. - (1.) THE plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit for declaration challenging the judgment and decree dated 18.03.1992 as not binding upon the rights of the plaintiff on the ground that it is actuated by fraud and misrepresentation, was dismissed.
(2.) THE plaintiff and defendant No.1 are the son and daughter of one Puran Ram. The defendants No.2 and 3 are sons of Jetha Ram, another son of Puran Ram. The assertion of the plaintiff -appellant is that respondent No.1 is owner of 1/24th share of land measuring 650 Kanals 19 Marlas situated in village Barwala, Tehsil Dabwali, District Sirsa and 1/24th share of land measuring 113 Kanals 18 Marlas situated in village Risalia Khera, Tehsil Dabwali, District Sirsa. The plaintiff invoked the jurisdiction of the Civil Court with the averment that suit property was a Joint Hindu Family property and in a family settlement the suit land has fallen to the share of the plaintiff whereas defendants No.2 and 3 played fraud over defendant No.1 and obtained impugned decree on 18.03.1992 in a suit filed by defendants No.2 and 3. In the suit, the stand of defendant No.1 in her written statement is that decree has been obtained by fraud and that share of defendant No.1 was to be divided amongst the plaintiff to the extent of half share whereas the remaining half share was to be given to defendants No.2 and 3. It is stated that, in fact, only half share was to be given to the defendants No.2 and 3 when she appeared in the previous suit whereas the decree passed in respect of her entire share in favour of defendants No.2 and 3 is not the correct decree. In the said suit, the following issues were framed: - 1. Whether the judgment and decree dated 18.03.1992 passed in Civil Suit titled as Bhuru Ram versus Sajjna Devi are illegal, null and void and not binding on the interest of the plaintiff and accordingly liable to be set aside on the grounds alleged? OPP. 2. Whether the plaintiff is owner in possession of the suit land as per shares given in the head of plaint? OPP 3. Whether the plaintiff has no locus -standi and cause of action to file the present suit? OPD 4. Whether the suit is not maintainable in the present suit? OPD 5. Whether the suit is time barred? OPD 6. Whether the defendants are entitled to special costs under Section 35 -A CPC? OPD. 7. Relief. In the said suit, the plaintiff appeared as his own witness as PW -1 and also examined Mani Ram as PW -2. Plaintiff also produced the decree (Ex.P1), judgment (Ex.P2) apart from the Jamabandi for the year 1986 -87 (Ex.P3) and the mutation (Ex.P4). The plaintiff also produced decree (Ex.P5) in a suit Mani Ram Vs. Khaili Ram in rebuttal. On the other hand, defendant No.1 appeared as his own witness as DW -1 and also examined Mahavir as DW -2. Defendants No.2 and 3 examined Om Parkash as DW -3, Kulvir Singh Passi, Advocate as DW -4, Lal Chand as DW -5 and produced copy of the plaint (Ex.D1), written statement (Ex.D2) in the earlier suit titled as Bhaira Ram Vs. Sajjna Devi. After considering the evidence, learned trial Court dismissed the suit relying upon Division Bench judgment of this Court in Gurdev Kaur and others Vs. Mehar Singh and others, 1989 PLJ 182. The appeal against the said judgment was dismissed wherein the reliance was placed upon another judgment in Parvin Kumar and others Vs. State of Haryana, 1991 PLJ 95.
(3.) IN the present second appeal, the plaintiff -appellant claimed the following substantial question of law: - "Whether the consent decree dated 18.03.1992 passed in civil suit titled Bhura Ram Vs. Sajjna Devi is illegal and void and not binding on the plaintiff and liable to be set aside - Learned counsel for the appellant relies upon judgment of Hon'ble Supreme Court in Bhoop Singh Vs. Ram Singh Major and others, (1995) 3 SCC 709 wherein the Division Bench judgment in Gurdev Kaur's case (supra) was found to be not correctly decided. It was held therein that the decree or order of the Court which declares the pre -existing right and which does not by itself create new right, title or interest in praesenti in immovable property alone would not require registration. The relevant extract from the judgment reads as under: - "16. We have to view the reach of clause (vi), which is an exception to sub -section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre -existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order. 17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre -existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in preasenti in immovable property of the value of Rs.100 or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registerable. 18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below : (1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration. (2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs.100 or upwards in favour of any party to the suit, the decree or order would require registration. (3) If the decree were not to attract any of the clauses of sub -section (1) of section 17, as was the position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration. (4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question. (5) If the property dealt with by the decree be not the "subject matter of the suit or proceeding", clause (vi) of sub - section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated." ;