Modi, J. - (1.) THIS is a second appeal by the defendant Hansraj and others against the judgment of the District Judge, Pratapgarh, dated the 7th June, 1954, in a suit for possession of certain agricultural land.
(2.) THE material facts, so far as they are relevant for the purposes of the present appeal, are briefly these. THEre is a well named Bhanwaria in village Sowania. Attached to this well are two fields one measuring 5 bighas and the other measuring 4 bighas. THEre was also some parat land appurtenant to it but we are not concerned with that so far as this appeal is concerned. THE plaintiff Pyarchand's case was that the aforesaid land measuring 9 bighas was the muafi land of one Chatubhuj, that Chaturbhuj gave a bapi Patta of that land to his son-in-law Khuman for a sum of Rs. 1001/- by a document dated Sawan Vadi 5, Svt. 2001 (corresponding to the 7th July, 1944) (Ex. P-l). THEreafter Khuman sold his khadam (i.e., tenancy) rights with respect to this land to the plaintiff Pyarchand and Badrilal Brahmin for Rs. 1,125/- by a registered deed dated Svt. 2003, Baisakh Sudi 9 (corresponding to 25th April, 1946) (Ex. P-4) and made over possession of the same to them. Subsequently Badrilal transferred his rights to Dudilal and the latter to the plaintiff Payarchand, and thus the plaintiff acquired khadam rights in respect of the entire 9 bighas of land for himself. THE plaintiff's case further is that the defendants managed to purchase proprietary as well as tenancy rights in respect of the disputed land, measuring 9 bighas some time in the month of Kati of Svt. 2003 (corresponding to October, 1956). This naturally gave rise to a dispute between the parties because while plaintiff was in actual possession of the entire 9 bighas of land the defendants had also made a bid to obtain proprietary as well as tenancy rights in respect of the same land from Mst. Bhuri widow of Shankerlal who was a brother of Chaturbhuj. Consequently, it is common ground between the parties, that an agreement was arrived at between them on Svt 2003, Kali Sudi 2, (corresponding to 26th October, 1946) in which it was agreed, among other tilings, that as the plaintiff was in possession of the khudam lights in respect of the 9 bighas of land attaching to the well bhanwaria, and as the defendant had purchased the entire land including the proprietary rights from Shankerlal's widow, the defendants would forego their hasil bhog in respect of the field, measuring 4 bighas to be left in the possession of the plaintiff, and in exchange the plaintiff would give up his right with respect to the field measuring five bighas, to be given over to the defendants would not lay any claim whatsoever to hasil bhog from the plaintiff in respect of the field left with him. This agreement, Ex. P-2, was executed by the defendants in favour of the plaintiff and a corresponding agreement Ex. D-1 which is a much briefer one was executed by the plaintiff in favour of the defendants on the same day; but in order to appreciate the arrangement which had been arrived at between the parties it is obvious that the two have to be read together. On the 15th November, 1949, the plaintiff instituted the present suit in the court of the Munsif Chittorgarh, and his contention was that the acquisition of the hasil bhog rights by the defendants in respect of the muafi land was unlawful and void being contrary to the muafi rules of the Mewar State and the agreement concluded between the parties (by means of Exs. P-2 and D-l) by which the defendants granted a remission of the hasil bhog to the plaintiff in respect of the 4 bighas of land to be left in his possession and the transfer of 5 bighas remaining land to the defendants in lieu of the remission of the hasil bhog already mentioned was also unlawful and void. THE plaintiff, therefore, prayed for recovery of possession of 5 bighas of land, the possession whereof had been given by him to the defendants by virtue of the aforesaid unlawful agreement. The defendants Hansraj Chhaganlal and Mangilal resisted the suit while the fourth defendant Shankerlal allowed the suit to proceed ex parte against him. The contesting defendants raised numerous pleas. One of the principal pleas raised by them was that the plaintiff's predecessors-in-title Chaturbhuj had no right whatsoever with regard to the muafi land in suit and that the said land belonged to Mst. Bhuri widow of Shankerlal (Chaturbhuj's brother) and that the defendants had derived their rights of khadam from her and consequently the plaintiff had acquired no lawful claim or right with respect to the land claimed by him. Another plea raised by the defendants was that the parties had arrived at a compromise between themselves on the plaintiff's own showing and, therefore, he was estopped from bringing the present suit. The other pleas raised were that the documents on which the plaintiff based his claim were compul-sorily registrable and as they had not been so registered they were inadmissible in evidence; that the suit was not of a civil nature and was exclusively triable by a revenue court and that Badrilal and Dudilal were necessary parties, and finally, that the defendants had obtained only khadam rights in respect of the suit and land not hasil bhog and, therefore, they were entitled to retain possession of the 5 bighas of the land claimed by the plaintiff. When the suit was pending in the court of the Munsif Chittorgarh, the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (No. I) of 1951, came into force on the 21st January, 1951. The Munsiff held the opinion that the suit was exclusively triable by a revenue court according to the Act referred to aboye and consequently by his order dated the 23rd April, 1951, he transferred the suit to the Sub-Divisional Magistrate, Chittorgarh, for trial according to law. Issues were raised in due course and some of these obviously pertained to questions of proprietary rights. It was represented on behalf of the defendants that such issues be referred to the civil court for decision in accordance with sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, and the matter again came before the Munsif, Chittorgarh, for a decision on these issues. The Munsif was of the opinion that issues Nos. 1 to 6 involved, or were concerned with, a decision as to proprietary rights and his findings on the material issues may be briefly summed up like this. The Munsiff found that Chaturbhuj was the muafidar of the suit land and that he had granted the bapi Patta to Khuman thereof by the document dated Svt. 2001, Savan Vadi 5 'Ex. P-l) and further that Khuman had transferred his rights to the plaintiff and Badrilal by a registered document Svt.2003, Vaiksah Sudi 9 (Ex. P-4), and had made over possession thereof to the latter, and Badrilal had transferred lis right to Dudilal to the plaintiff with the result that the plaintiff was in possession of the entire 9 bighas of land. The Munsiff further found that the defendants had obtained a transfer of hasil bhog and khadam right in respect of the suit land in the month of Kati of Svt. 2003 and that the defendants had entered into an agreement with the plaintiff by which they acquired possession of five bighas of land and in lieu thereof gave the munsiff a remission as to hasil bhog on the 4 bighas of land which the plaintiff was allowed to retain in his possession. The Munsiff lastly found that the acquisition by the defendants of the hasil bhog in respect of the suit land and the further arrangement arrived at between the parties by which the plaintiff received hasil bhog rights on 4 bighas of land and in lieu whereof the defendants obtained possession of five bighas of land was unlawful according to the provisions of the Muafi Rules (1923) of the Mewar State and that as the consideration for this agreement was illegal or was such as would defeat the provisions of the Muafi Rules, the agreement was void and, therefore, the plaintiff was entitled to get back possession of the five bighas of land. Before proceeding further I consider it proper to point-out that some of the issues decided by the Munsiff do not appear to me be strictly within the domain of sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, and in my view he should not have given any findings of them. To illustrate my point, I need only say that it was none the business of the Munsiff to say that the plaintiff was entitled to possession of the 5 bighas of land claimed by him as this certainly was not a question of proprietary right. All this difficulty seems to have arisen in the present case because the Sub-Divisional Officer did not strictly comply with the provisions of sec. 36 of the Act according to which he should have referred only certain issues relating to proprietary right to the civil court and invited the decision of the latter court on those issues only. What the Sub-Divisional Officer did in this case was to have merely referred the issues relating to proprietary right generally to the civil court without indicating which were these issues. The point, however, is of little more than academic interest at this stage inasmuch as the entire case has been gone into threadbare in this Court and was also gone into before the District Judge, and the District Judge who, in a case like the present, was a proper court of appeal has also come to the same conclusions as the Munsiff. The Munsiff having returned his findings on the issues, as stated above, the case came again before the Sub-Divisional Officer who decided the remaining issues and decreed the plaintiff's suit for possession of 5 bighas of land. The defendants went in appeal to the learned District Judge, Pratapgarh, who affirmed the decree of the court below. From the above judgment and decree, this appeal has been filed. Learned counsel for the defendants has raised a number of points before me in this appeal, and I propose to dispose of them one by one, The first contention which deserves to be considered in order of importance is that Mst. Bhuri was the real muafidar of the land in dispute and that Chaturbhuj had nothing to do with it. It is obvious that if this contention is held in favour of the defendants, the plaintiff must be nonsuited for his entire claim is based on his having derived his rights from Khuman who had in turn derived them from Chaturbhuj. It should not have been necessary for me to have dealt with this aspect of the case at length in this second appeal but for the fact that the discussion of this part of the case by the learned District Judge has unfortunately not been quit satisfactory and is rather sketchy. The defendants case is based upon four documents two of which are marked Ex. D-l, and basides these are D-2, and D-3. The one Ex. D-l was executed at the same time as Ex. P-2 and both these documents put together embody the compromise or the arrangement arrived at between the carries in 1946. Consequently they must be read together. Now, so far as Ex. P-2 is concerned, it definitely mentions that the parties were dealing with certain land which was held in the muafi of Chaturbhuj. This document does not mention at all that Mst. Bhuri or her husband Shankerlal was the muafidar of the land in dispute. If further mentions that Chaturbhuj had transferred his khadam rights to Khuman and that Khuman had in turn sold them to Badrilal and Pyarchand and given over possession to them. There is a 'further reference therein that Chaturbhuj had got a suit filed by Shankerlal's widow and that that suit was pending and further that the defendants had obtained the sale of the entire right including hasil bhog from Shankerlal's widow, and, most remarkable of all the document clearly stated that the fact that plaintiff was in possession of the entire land had been proved to the hilt and and admitted of no doubt. This document, Ex. P-2, has been proved to have been executed by all the defendants and there is no dispute before me that they were not signatories thereto. It is true that Ex D-l does not repeat all that has been stated in Ex. P-2 and is very briefly worded ; but that is neither here nor there, and the defendants cannot be heard to say that they are not bound by certain statements of fact mentioned in Ex. P-2 as their own admission unless of course they successfully show that they were wrong of which again there is no satisfactory proof on this record. The next document Ex. D-l is writing by Chaturbhuj in favour of Mst. Bhuri dated Sawan Sudi 2, Svt. 1988 (corresponding to some time in 1931 A, D) and it purports to say that Chaturbhuj granted these nine bighas of land to Mst. Bhuri by way of maintenance as his brother's widow. There is a further document Ex. D-3 from Chaturbhuj to Mst. Bhuri, which is to the same effect and is dated Svt. 2002, Chait Vadi 11 (corresponding to 29th March, 1946). This document was obviously executed by Chaturbhuj in favour of Mst. Bhuri after he had executed the bapi Patta Ex. P-l in favour of Khuman on 7th July, 1944, and seems to be collusive. In the first place if Chaturbhuj had already granted these nine bighas of land to his brother's widow in Svt. 1988, where was the need for him to have executed a further document to the same effect in Svt. 2002, 14 years afterwards ? That Ex. D-l is a spurious document is proved to the hilt by the statement of Mst. Bhuri herself because, on her own showing, she never came into possession of the land in question before Ex. D-3 was executed in Svt. 2002. Mst. Bhuri's version that she came in possession of the land in Svt. 2002 stands also falsified to the hilt because Chaturbhuj had in the meantime granted bapi rights to Khuman and Khuman later transferred his right9 by a registered deed to the plaintiff and another person Badrilal whose rights the plaintiff subsequently acquired. It admits of no doubt or dispute that at the time the agreement between the parties which is sought to be avoided by the plaintiff was arrived at in October, 1946, the plaintiff Pyarchand was undoubtedly in possession of the entire land because that is witnessed by the document Ex. P-2 which was executed by the defendants themselves, and they clearly mentioned therein that the plaintiff was in possession of the land. It is necessary in this chain of circumstances to make a brief reference to Ex. D-2 which is a document said to have been executed by Khuman in favour of Chaturbhuj and is dated Svt. 2001, Sawan Vadi 7, corresponding to 9th July, 1944. By this document Khuman purports to return all that he got from Chaturbhuj in the way of bapi rights in respect of the 9 bighas of land back to Chaturbhuj under the pretext that Shankerlal's widow, Mst. Bhuri, was in reality entitled to them. The most amazing part, however, is that in spite of all this, Khuman was in possession of the bapi Patta which he got from Chaturbhuj and he passed it on to the plaintiff and Badrilal almost two years later when he sold his lights to the latter and was further in possession of the land, and passed the same on to Pyarchand and Badrilal. Having regard to all these facts and circumstances, I have not the slightest hesitation in coming to the conclusion that Chaturbhuj was a double-faced person and was running with the hare and bunting with the hounds and in this game he was assisted or supported by his own son-in-law Khuman ; but all that is of no avail because Chaturbhuj was at all relevant times in effective possession and he passed on that possession to Khuman, and Khuman in his turn was able to pass it on to the plaintiff and his co-sharer. I, therefore, entirely concur in the finding of the Munsiff that Chaturbhuj was the muafidar of these nine bighas of land and that the defendants have entirely failed to show that Mst. Bhuri and not Chaturbhuj was the muafidar thereof.
(3.) AN argument was raised before me that Ex. P-l the bapi Patta granted by Chaturbhuj to Khuman had not been registered and, therefore, it was inadmissible in evidence and is ineffective to pass any rights to Khuman, and it is further argued that if Khuman had no rights that he could have effectively passed on, then the plaintiff could not have acquired any right from Khuman whatever. I have carefully examined this contention and am of opinion that it is without any substance. Learned counsel for the appellant placed his reliance on sec. 5 of the Mewar Registration Act. Before I address myself to the interpretation of this section, let us look at Ex. P-l which is the document executed by Chaturbhuj in favour of Khuman. It appears from a perusal of Ex. P-l that Chaturbhuj had taken a sum of Rs. 1,001/- from Khuman and in consideration thereof gave his bapi rights to the latter permanently. It was further mentioned in the document that Chaturbhuj would thereafter be entitled to his hasil bhog only and that Khuman would give it according to the village custom. This document, to my mind, was a permanent lease granted by Chaturbhuj to Khuman in lieu of a certain premium which had already been charged and a certain amount of rent which was to be charged from time to time. Now, such a document does not, in my opinion, fall within clause (1) of sec. 5 (A) of the Mewar Registration Act but falls under sub-sec. (B). What Chaturbhuj was doing was not to sell his entire rights in the property and this is the type of transaction which seems to me to be covered by sub-clause (1) of sec. 5 (A), before a document would be compulsory registrable thereunder. As he was merely transferring his right of cultivation in this case I am of opinion that the document in question was not compulsory registrable. I am fortified in this view by sub-sec. (2) of sec. 5 which provides that certain documents which relate to transfer of rights in relation to immovable property, such as simple mortgages or "bhada chitis" or "thekas', are merely optionally registrable and not compulsory so. I, therefore, overrule this objection. The next point which was vehemently argued before me was that the courts below had grossly erred in holding that the plaintiff was not estopped from bringing his present suit on the ground that there was a dispute between the parties relating to this 5 bighas of land and that in order to settle that dispute they had arrived at a compromise and had acted upon it. It was further contended that it was no ground for setting aside a compromise that a claim or one of the claims made by one of the parties was not well founded in law if it was made bona fide, and that there was nothing to show in the present case that the defendants were guilty of bad faith. Learned counsel for the respondents argued at one time that in the present case there was no dispute between the parties and no litigation between them and, therefore, there was nothing to compromise. In this submission however, I find no force because it is not the essence of the compromise that there should be actual litigation between the parties before it is entered into. All that is necessary is that there and must be a bona fide claim on the one side which is controverted on the other, and, if it is so, that is a sufficient foundation for the compromise, and it cannot be said to be without consideration in law. It was, however, further argued on behalf of the respondents that one of the essential condition for upholding a compromise is that it must be lawful and that it must not be opposed to or forbidden by any law or contrary to public policy and that if a compromise did not fulfil this condition it was unenforceable. The argument was that the compromise or agreement in the present case was contrary to rule 19 of the Mewar Muafi Rules and, therefore, it was unlawful and that being so the parties could not be held to be bound by it and the plaintiff was within his rights in questioning it according to law Now, before I deal with the effect of rule 19 on the compromise before me, I consider it right to state atonce that the principle that one of the essential conditions for the enforceability of a compromise is that it must be lawful and that it must not be opposed to any statute or contrary to public policy is supported by abundant authority. In this connection I cannot do better than to invite attention to the provisions of rule 3 of O. XXIII of the Code of Civil Procedure, which clearly lays down that before a court will order an agreement or compromise to be recorded and pass a decree in accordance therewith, it must be satisfied that the suit before it has been adjusted wholly or in part by any lawful agreement or compromise. In other words, the rule restricts the authority of the court to record compromises and grant decrees only if they are lawful ; and before such a decree is passed, it is the duty of the court to inquire into the question whether the compromise, it is asked to record, is a lawful one or not. The rule itself is so clear that it is unnecessary to cite authority in support of it ; but if any authority were needed, reference may be made to Ramchandra vs. Venkatalakshminarayana (1),Tikaram vs. Tejram (2), Mst. Sakli vs. Makant Ram (3) and Prem Prakash vs. Mohanlal-(F.B.) (4). In the last mentioned case, the judgment-debtor who was headmaster of a certain school and was indebted submitted to an arbitration. The arbitrator gave his award and a decree was passed in conformity with it. According to the terms of this decree, the amount decreed was payable in certain instalments but was to become payable at once in case of default of any two monthly instalments, and it was further ordered that the instalments would be a charge on the salary of the judgment-debtor and on his provident fund. The judgment-debtor defaulted and consequently the decree-holder applied for execution. An objection was raised on behalf of the judgment-debtor and his wife who was the assignee for the provident fund that the salary and the provident fund were not liable to attachment and that the agreement on their part to permit the provident fund and salary to be attached was void and unenforceable. The executing court upheld these objections. On appeal to the High Court it was contended that it was not open to the executing court to go behind the decree at least so far as the charge on the judgment-debtor's pay was concerned and that he could not object to the attachment of his pay as he had voluntarily created a charge, and whatever his rights might have been before such an agreement was arrived at, he must be taken to have waived them. This contention was repelled and it was held that ordinarily a court in execution cannot go behind decree but where a decree was passed in consequence of a compromise and gave effect to the will of a party without any adjudication by the court itself the contract cannot be said to have any greater sanctity because the command of a judge has been aided to it. It was further held that the contract in cases of this kind must be taken to have been adopted with all its incidents, and that if it was open to a party to plead that a contract was void or unenforceable, it was equally open to him to urge that the contract, although embodied in a decree, still was void and unenforceable. It was further said that it was the duty of the court under O. XXIII, r. 3 C.P.C. to see that the agreement or compromise was lawful and if without taking that question into consideration the court had passed a decree, the agreement or the compromise did not become legal on account of that omission by the court, and it was competent for the executing court to go behind a compromise decree and to find that it was inevecutable on account of its coming into conflict with sec. 60(1) of the Code of Civil Procedure. It is not necessary for the purposes of these cases before me to go as far but the principle is clearly deducible from the authorities cited above that a compromise to be enforceable against a party must not be opposed to any law or public policy. The above cases also establish the further principle that if an agreement is found to be in contravention of a statute or against public policy, a party cannot be held estopped from proving facts which would render the agreement void ab initio. The argument that a party would thereby be enabled to take advantage of his own wrong would not be sufficient to deprive him of the relief to which he would be otherwise entitled because there can be no estoppel against the statute, This brings me to the question whether the transfer of hasil bhog or proprietary rights, according to the Muafi Rules of the Mewar State, with respect to muafi lands is or is not lawful. These rules were enacted by His Highness the Maharana of Mewar in Svt. 2001 and were brought into force from the 12th September, 1946. The agreement or compromise between the parties had been effected on the 26th October, 1946, after these rules had come into force. Rules 19 to 23 deal with alienation of muafi lands. Rule 19 says that a permanent transfer of the bhog of "sansnik" or "inamia" muafis will be najayaz i.e., unlawful, and that such alienation will entail forfeiture of the land so transferred to the State. It is further provided that if along with bhog, Khadam rights have been transferred, then the transferee of Khadam rights will be allowed to be recorded as bapidar. More or less similar provisions have been made in the subsequent sections with regard to other kinds of muafi and permanent alienations of muafi chakrana or of muafi devasthan or of muafi sat darshan stand prohibited on pain of forfeiture. An argument was raised before me that such transfers are not void ab initio but are only void against the State. I am entirely unable to accept this contention because by the very wording of the provisions of the muafi rules, such alienations have not only been prohibited as unlawful but they are further subjected to a penalty and it is laid down that the subject-matter of alienation is to revert to khalsa (i.e., the State). That being the law in the State of Mewar, there can be no escape from the conclusion that the transfer of 9 bighas of land obtained by the defendants from Mst. Bhuri was unlawful and was void ab initio. For the same reasons, the agreement arrived at between the plaintiff and the defendants as embodied in Ex. P-2 that the plaintiff need not pay any hasil bhog to the defendants, or, in other words, that he would be the full-fledged proprietor with respect to one of the fields measuring four bighas and that in lieu thereof the plaintiff was to, and did, hand over possession of the other five bighas of land to the defendants, and in respect of that, the defendants would be the proprietors having obtained proprietary rights from the previous holders would also be in violation of the provisions of rules 19 to 23 of the Mewar Muafi Rules. It clearly follows that these transactions are unlawful and void within the meaning of sec. 23 of the Indian Contract Act. This position is not to my mind affected in any way by the circumstance that the parties had come to a compromise between themselves with a view to settle some dispute regarding these nine bighas of land in an amicable manner. The important consideration is that before a compromise can be recognized by the law courts, it is essential that the compromise must not be opposed to law or such as to defeat the provisions of any law or contrary to public policy. Where this condition is wanting, it affects the very foundation for the compromise and the compromise must indeed give way to the law of the land laid down by competent authority. From what has been already stated above, it further follows that the consideration that a person seeking to avoid a compromise was himself a party thereto, cannot be allowed to militate against and outweigh the consideration that by so doing the law of the land would be defeated. In this view of the matter my conclusion is that the compromise entered into between the parties by means of Exs. D-l and P-2 as also the transaction that preceded it and by which the defendants claim to have acquired the entire proprietary as well as Khadam rights with respect to the land in dispute cannot be recognized and must be declared to be void. The next question to decide is ; if the conclusions to which I have come above are correct, as they undoubtedly seem to me to be, is the plaintiff not entitled to the recovery of the possession of the five bighas of land from defendants as held by the courts below. I think he is. Sec. 65 of the Contract Act or, at any rate, the principle thereof, seems clearly applicable, and that section provides that when an agreement is discovered to be void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. The plaintiff parted with his Khadam rights in respect of this five bighas of land as a consideration for getting the entire bundle of proprietary rights with regard to the four bighas of land, which are already in his possession. But as the law is, the plaintiff could not have acquired and cannot acquire any proprietary rights in respect of this four bighas of land ; and that being so, the consideration, which might otherwise have sustained the compromise having failed, the compromise is unlawful and the defendants are liable to restore the advantage to the plaintiff which they obtained from him as a result of the compromise. Before concluding this judgment I may briefly dispose of two more points which were argued before me, though faintly, on behalf of the appellants. The first point is that the defendants appellants had acquired the transfer not of proprietary rights from Mst. Bhuri but only Khadam rights, and in support of this argument reliance was placed on Ex. P-7. This Ex. P-7 purports to have been executed by Mst. Bhuri in favour of the defendants and mentions that the former was transferring her Khadam rights to the latter for a sum of Rs. 1,400/- and is dated Svt. 2003, Kati Sudi 2 (corresponding to 26th October, 1946). This document was produced by defendant Chhaganlal in reply to a question put to him in his cross-examination by the plaintiff respondent when he appeared as a witness in support of his own case. It is remarkable, however, that the defendants appellants withheld the document relating to their own right till they got an opportunity to produce it at the end of the case in reply to a question put by the plaintiff. Be that as it may, this document does not inspire much confidence. The first and the simplest reason is that it is astonishing that the defendants refrained from producing a document relating to their own right at the proper time, which undoubtedly must have been in their possession from the very beginning. It is a serious question why they did so and no satisfactory explanation is forthcoming. In the second place, a direct lie is given to the state of things mentioned in Ex. P-7 by the contents of Ex. P-2 which was undoubtedly executed by the defendants and the arrangements arrived thereunder. Ex. P. 2 clearly mentions that the defendants had obtained the entire proprietary rights from Shankerlal's widow Mst. Bhuri as indicated by the following expression occurring therein ;