Shri Pal Singh vs Shri Darshan Singh
2011 Latest Caselaw 109 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 06.01.2011
                   Judgment Delivered on: 10.01.2011


+                        RSA No.214/2003


SHRI PAL SINGH                           ...........Appellant
              Through:              Mr.Gurinder Pal Singh and Mr.Nitin
                                    Mangla, Advocates

                   Versus

SHRI DHARSHAN SINGH                      ..........Respondent
             Through:               Mr.Y.P. Bhasin, Advocates


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR


     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                       Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This appeal has directed against the judgment and decree

dated 29.8.2003 which had endorsed the finding of the trial judge

whereby the suit of the plaintiff Darshan Singh seeking

declaration qua his share in the suit property measuring 21 bighas

11 biswas in Bagh Wala Rakba was decreed in his favour.

2. The plaintiff Darshan Singh and Jagdish Singh were cousins;

they had jointly applied for allotment of evacuee land in Delhi in

lieu of the land which had been held by them in West Pakistan.

After the death of Jagdish Singh the defendant was substituted in

his place. On their joint application two lots of land were jointly

allotted to the parties i.e. 49 bighas 13 biswas falling in village

Haibatpur and 21 bighas 11 biswas in Bagh Wala Rakba. Parties

entered into a mutual agreement dated 14.4.1970; in terms of this

agreement the land comprised in village Haibatpur i.e. 49 bighas

13 biswas came to the exclusive possession of the defendant and

the land measuring 21 bighas 11 biswas in Bagh Wala Rakba fell

to the share of the plaintiff. This mode of partition was forwarded

to the Managing Officer of the Revenue Department. This request

was declined. Defendant thereafter sold his 49 Bighas 13 biswas

of land and received the entire sale consideration. Plaintiff

requested the defendant for execution of necessary documents in

order that the 21 bighas 11 biswas land falling to his share be

mutated in his name but the defendant declined his request.

3. The defendant in his written statement admitted the

agreement but his submission was that this agreement was never

acted upon. Contention was that the parties were dealing with

the land jointly and the sale proceeded of 49 bighas 13 biswas of

land which had been sold was divided equally by both the plaintiff

and the defendant. It was contended that the parties continued to

own the land jointly. Suit was liable to be dismissed.

4. On the pleadings of the parties, the following issues were

framed; they read as follows:

"1. Whether the agreement dated 14.4.70 was not acted upon?

2. Whether the whole of the sale consideration regarding land measuring 49 bighas 13 biswas was received by Deft., only? if so, its effect?

3. Whether the defendant is the exclusive owner of the land measuring 21 bighas 11 biswas?

4. Whether the plaintiff is in possession of the property in suit? If not whether the suit is not maintainable?

5. Whether suit is barred by estoppel? OPD (Onus object to)

6. Whether the suit is properly valued for the purposes of court fees and jurisdiction?

7. Relief."

5. Issue no.1 had been framed pursuant to an application filed

under Section 14 Rule 5 of the Code of Civil Procedure

(hereinafter referred to as „the Code‟). The parties led their

respective evidence. The trial court on the basis of the oral and

documentary evidence led by the parties held that the parties had

in fact acted upon this agreement dated 14.4.1970. The land

measuring 49 bighas 13 biswas had been sold and the entire sale

consideration had been received by the defendant evidencing the

fact that this agreement dated 14.4.1970 had been acted upon.

6. The finding of the trial judge was endorsed in appeal vide

the impugned judgment dated 29.8.2003. It was held that the

decree of declaration passed in favour of the plaintiff called for no

interference.

7. This is a second appeal. After its admission, the following

substantial questions of law had been formulated; they inter alia

read as follows:

"1.Whether unregistered document i.e. Agreement dated 14.04.1970 can be read in evidence?

2.Whether the courts below have decided the case in accordance with law?"

8. On behalf of the appellant, it has been urged that the

agreement dated 14.4.1970 was a partition deed and this has been

the submission of the plaintiff right from its inception; this also

finds mention in his pleadings. The document dated 14.4.1970

(Ex.PW-1/8) also makes reference it as a partition deed. Such a

document requires a compulsory registration under Section 17

and 49 of the Indian Registration Act, 1908; in the absence of

which this document cannot be lead in evidence. On this ground

alone the impugned judgment is liable to be set aside. On a query

by the Court to the preliminary objection about the maintainability

of such a plea that the document dated 14.4.1970 requires

compulsory registration which plea admittedly had not been taken

up before the Courts below, learned counsel for the appellant has

submitted that this submission goes to the root of the controversy

between the parties and it is a question of law which can be raised

and adjudicated upon in a second appeal. Learned counsel for the

appellant has placed reliance upon a judgment of the Apex court

reported in AIR 2004 SC 1591 Achintya Kumar Saha Vs. Nanee

Printers and Ors. as also in judgment of the Supreme Court

reported in 2010 (2) ALLMR(SC) 490 Mohd. Laiquiddin and Anr.

Vs. Kamala Devi Misra (Dead) by L.Rs. and Ors. to support his

submission. In the first case, the question was whether the

agreement was a licence or a tenancy; this being the core issue

and not having been adjudicated upon by the first appellate Court

it was held to raise a substantial question of law permitting the

second Appellate Court to go into the said issue. In the second

judgment, the plea raised was that the assets of the partnership

firm should have been dealt with under Section 48 of the Indian

Partnership Act, 1932 and the proceeds be disbursed to the

partners in accordance with their respective shares. This plea

had been dismissed by the High Court. The Apex Court held that

when a question of law is raised on the basis of the pleadings and

the evidence on record which could not be raised before the

Courts below it would be difficult to hold that such a question of

law cannot be permitted for the first time before the High Court.

In the instant case the plea of the appellant/defendant before the

courts below was that the partition deed was never acted upon;

specific issue to this effect had also been framed. His argument

before this Court is that this agreement could not have been read

in evidence in the absence of registration. It is submitted that this

plea now set up is a legal extension of the argument which had

admittedly been raised in the Courts below. The legal submission

being that the provisions of Section 17 and 49 of the Registration

Act would bar the reading in evidence of such a document in the

absence of registration.

9. There is no opposition to this preliminary submission.

Learned counsel for the respondent has however countered the

argument of the appellant on merits by submitting that the

agreement dated 14.4.1970 was always acted upon and as such

did not require any registration.

10. The preliminary submission made by the learned counsel for

the appellant carries substantial force and the admissibility of the

document dated 14.4.1970 (Ex.PW-1/8) and its true

construction can be gone into. If the Court is of the view that this

document dated 14.4.1970 was a partition deed and not acted

upon, it would become a pure question of law that in the

absence of registration of such a document whether it could be

read in evidence in view of the provisions of Section 17 of the

Registration Act. This is also the first substantial question of law

formulated by this Court.

11. Record has been perused. Written statement has not

disputed the document dated 14.4.1970. Para 6 clearly states that

the parties had entered into this agreement but the agreement

was never acted upon. In fact issue no.1 has also been struck on

the presumption that there was such an agreement dated

14.4.1970 entered into between the parties. Question for

adjudication even before the trial court was as to whether this

agreement was acted upon or not.

12. This document is dated 14.4.1970 and the nomenclature

describes it as a „Deed of Agreement. Admittedly, the parties had

made a joint application for allotment of joint land in lieu of land

left by them in West Pakistan. Party no.1 has described in this

agreement is the plaintiff Darshan Singh and party no.2 is the

defendant Pal Singh. The defendant in terms of this agreement

had applied for Sanad/transfer that 49 bighas 13 bighas land

would fall in the name of Pal Singh and 21 bighas and 11 biwas

would go to the share of Darshan Singh. Para 6 of this agreement

gave the reasoning; it was that Darshan Singh had utilized the

claim compensation for adjustment towards his property and due

to this both the parties had mutually agreed to have a transfer

deed/Sanad in the aforestated ratios. Pursuant to this agreement

dated 14.4.1970, it is admitted that the parties had moved an

application before the Managing Officer to record the

Sanad/transfer in the aforenoted ratios. This request was

dismissed by the Managing Officer vide his letter dated 20.6.1970

and 27.6.1970. Against this order an appeal had been filed by Pal

Singh. This appeal before the Settlement Officer was dismissed

on 27.20.1970. This order categorically records that the parties

had mutually submitted a partition scheme dated 14.4.1970 which

had been rejected by the Settlement Officer; since the Revenue

Authority had been enabled to carry out the mutation the appeal

was dismissed.

13. These proceedings clearly show that the parties had in fact

acted upon this settlement dated 14.4.1970; they had treated this

agreement as the basis and foundation of their intention to claim

Sanad/transfer of the property in the aforenoted ratios before the

Managing Officer and thereafter in appeal before the Settlement

Officer. Their plea in these proceedings was that their land stood

mutually divided in terms of the agreement dated 14.4.1970 and

this should accordingly be recorded in the Sanad/transfer deed of

the revenue records. Not only was the intention of the parties to

act upon this agreement clear and unequivocal, it is also evident

and apparent that they had, in fact, acted upon this agreement.

14. The argument urged before the Court is that this agreement

dated 14.4.1970 is a partition deed and not a family settlement.

The nomenclature has described it as a „Deed of Agreement‟.

Parties are admittedly cousins; parties had entered into this

memorandum of settlement; pursuant thereto they had entered

into the proceedings aforenoted to record their land in the

aforenoted ratios. It does not now lie in the mouth of the

defendant/appellant to state that this agreement was not acted

upon. The judgments relied upon by learned counsel for the

appellant reported in 1988 RLR (SC) 239 Roshan Singh etc Vs.

Zile Singh etc. , AIR 1992 All 235 Bankey Bihar Vs. Surya Narain

alis Munnoo are on the ratio that an unregistered partition deed

cannot be read in evidence under Sections 17(1) and 49 of the

Registration Act. However, if a family settlement/partition deed

has been acted upon as is so in the instant case, there is no bar of

Section 17 which stands excluded. This has been held by this

court in 119 (2005) DLT 295 Amarjeet Lal Suri Vs. Moti Sagar

Suri & Ors. In this case the doctrine of estoppel was applied and

relying upon the judgment of the Apex Court reported in AIR 1976

SC 207 Kale & Ors Vs. Deputy Director of Consolidation & Ors. it

was held that even if a document i.e. partition deed requires

compulsory registration yet if one such party to the settlement

had altered his/her share position by acting upon that compromise

and under that compromise obtained a substantial benefit, he/she

is bound by it and cannot ask the other to undo it. In 105(2003)

DLT 987 Madan Lal Kapur Vs. Subhash Lal Kapur & Ors. the term

"family" was expanded to be understood in the wider sense so as

to include within its fold not only close relations or legal heirs but

even those persons who may have some sort of antecedent title, a

semblance of a claim or even if they have a spec succession is so

that future disputes are sealed for ever and the family instead of

fighting claims inter se and wasting time, money and energy on

such fruitless or futile litigation is able to devote its attention to

more constructive work in the larger interest of the country. The

rule of estoppel had been adverted to set aside the plea of the

person who sought to unsettle a settled dispute under

which he had himself enjoyed a material benefit. In Roshan

Singh (supra) the Supreme Court had held that a document

containing a recital of past events and prior arrangement cannot

be called a deed creating or extinguishing any right. The test for

determining whether a document is an instrument of partition or

otherwise had in fact been laid down. In the instant case, it is

evident from the testimony of PW-6 and PW-7 the defendant Pal

Singh had sold 49 bighas and 13 biswas of his share of the land

and the entire proceeds of this sale consideration had been

received by him. PW-6 and PW-7 were in fact the purchasers of

this land and had on oath stated that the entire consideration had

been given to Pal Singh and no money had been paid to the

plaintiff Darshan Singh; PW-6, further stated that he had been

directed to make the payment to Pal Singh only. No cross-

examination of these witnesses had been effected. PW-2, PW-3,

PW-4 and PW-5 were also witnesses to the effect that this

agreement had in fact been acted upon.

15. The first appellate Court had re-appreciated this controversy

and endorsed the finding of the trial judge. The second appellate

Court is not a third fact finding court. It cannot interfere into

findings of fact unless they are perverse. There is no perversity

in these findings. Both the Courts below had returned a clear and

categorical finding that the deed of agreement dated 14.4.1970

had, in fact, been acted upon. In these circumstances, the bar of

Section 17(1)(b) is not attracted. Doctrine of estoppel comes into

play. The defendant Pal Singh already having benefited himself

and on the basis of this agreement dated 14.4.1970 having sold

his share of 49 bighas 13 biswas of land and having received the

entire sale consideration of the sale proceeds himself cannot now

revert back and set up a case that this agreement was not acted

upon and was not binding. He is estopped from doing so.

16. There is no merit in the appeal. Dismissed.

INDERMEET KAUR, J.

JANUARY 10, 2011 nandan