Madhya Pradesh High Court
Munnalal Shivhare vs Smt.Hanumant Kumari on 1 May, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 1 st OF MAY, 2025
MISC. PETITION No. 1028 of 2019
MUNNALAL SHIVHARE AND OTHERS
Versus
SMT.HANUMANT KUMARI
Appearance:
Shri N.K. Gupta - Senior Advocate alongwith Ms. Rashi Kushwah -
Advocate for the petitioners.
Shri Saurabh Bhelsewale - Advocate for the respondent.
ORDER
The present petition under Article 227 of the Constitution of India has
been filed by petitioners being aggrieved by the order dated 02.02.2019
passed by the Second Civil Judge, Class-I, Sabalgarh, District Morena
whereby an application preferred by the respondent/plaintiff under Section
151, 152, 153 of the IPC for deleting Condition No.2 i.e. "आ ि का वतन
ितवाद गण ारा विधवत ् र ज े शन एवं टा प शु क अदा करने के प ात होगा।" imposed for
getting the compromise decree registered of its execution has been rejected.
2. The petitioners are further aggrieved by the order dated 31.01.2019
whereby the compromise application preferred by the parties under Order 23
Rule 3 of the IPC was allowed with certain conditions.
3. Shri N.K. Gupta - Senior Advocate alongwith Ms. Rashi Kushwah -
Advocate for the petitioners, while placing reliance in the matters of Bhoop
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Singh vs. Ram Singh Major & Others reported in AIR 1996 SC 196 and
Mukesh vs. State of M.P. & Another passed in Civil Appeal No.14808 of
2024 [arising out of SLP (C) No.4293 of 2021], decided on 20.12.2024 , has
argued before this Court that the legal position qua Clause (vi) of Section
17(2) of the Registration Act, 1908 has been settled and when a compromise
decree is passed without any collusion, pertains to subject property in the
suit and there exist pre-existing rights over the property and the said
compromise decree doesn't create any fresh rights in the property then it falls
under the exception of Section 17(2)(vi) of the Act of 1908 and therefore,
such compromise decree is not required to be registered, but ignoring the
said legal provision, the learned Court below had put in said Condition No.2
which had made the compromise decree non-executable. It was, thus,
submitted that the rejection of the application for deletion of Condition No.2
of compromise decree was per se illegal and therefore, while allowing the
petition, the said Condition be directed to be deleted.
4. On the other hand, Shri Saurabh Bhelsewale - learned counsel
appearing for the respondent has supported the case of the petitioner and has
submitted that as per the dictums of the Hon'ble Apex Court in the matters as
cited by the learned Senior Counsel, the compromise decree entered into
between the parties is not required to be registered, therefore, the impugned
order is per se illegal and it be quashed.
5. Heard counsel for the parties and perused the record.
6. The legal position qua Clause (vi) of Section 17(2) of the Act of
1908 which has been culled out by the Apex Court in the matter of Bhoop
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Singh vs. Ram Singh Major (supra) is summarised as under:
"(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
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the original clause would have been attracted, even if it were
to encompass property not litigated."
7. In the matter of Mukesh vs. State of M.P. ( supra), after a detailed
discussion in para 10 it was held by the Apex Court that it could be
discernible that in order to fall under the exception of Section 17(2)(vi) of
the Act of 1908, the following conditions are satisfied:
"(i) There must be a compromise decree as per the
terms of the compromise without any collusion;
(ii) The compromise decree must pertain to the subject
property in the suit; and
(iii) There must be a pre-existing right over the subject
property, and the compromise decree should not create a
right afresh."
8. The conclusion arrived at by the Apex Court in the matter
o f Mukesh vs. State of M.P. ( supra) is based upon its other various
judgments. The relevant portions, of the said judgements which has been
reproduced by the Apex Court, are quoted herein-below for ready reference:
"6. Under Section 17(1)(b), non-testamentary
instruments which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future,
any right, title or interest, whether vested or contingent, of
the value of one hundred rupees and upwards, to or in
immovable property requires registration. The word
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"instrument" is not defined in the Registration Act, but is
defined in the Stamp Act, 1899 by Section 2(14).
7. A compromise decree passed by a court would
ordinarily be covered by Section 17(1)(b) but sub-section (2)
of Section 17 provides for an exception for any decree or
order of a court except a decree or order expressed to be
made on a compromise and comprising immovable property
other than that which is the subject-matter of the suit or
proceeding. Thus, by virtue of sub-section (2)(vi) of Section
17 any decree or order of a court does not require
registration. In sub-clause (vi) of sub-section (2), one
category is excepted from sub-clause (vi) i.e. a decree or
order expressed to be made on a compromise and comprising
immovable property other than that which is the subject-
matter of the suit or Arising out of SLP (C) No.32799 of
2019) Mohammade Yusuf & others v. Rajkumar & others
(2020) 10 SCC 264 proceeding. Thus, by conjointly reading
Section 17(1)(b) and Section 17(2)(vi), it is clear that a
compromise decree comprising immovable property other
than which is the subject-matter of the suit or proceeding
requires registration, although any decree or order of a court
is exempted from registration by virtue of Section 17(2)(vi).
A copy of the decree passed in Suit No. 250-A of 1984 has
been brought on record as Annexure P-2, which indicates
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that decree dated 4- 10-1985 was passed by the Court for the
property, which was subject-matter of the suit. Thus, the
exclusionary clause in Section 17(2)(vi) is not applicable and
the compromise decree dated 4-10-1985 was not required to
be registered on plain reading of Section 17(2)(vi). The High
Court referred to judgment of this Court in Bhoop Singh Vs.
Ram Singh Major and Others, (1995) 5 SCC 709, in which
case, the provision of Section 17(2)(vi) of Registration Act
came for consideration. This Court in the above case while
considering clause (vi) laid down following in paragraphs
16, 17 and 18:-
"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
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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 praesenti 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
registrable.
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
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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."
8. In the facts of that case, this Court held that the first
suit cannot really be said to have been decreed on the basis
of compromise, as the suit was decreed "in view of the
written statement filed by the defendant admitting the claim
of the plaintiff to be correct". Further, the earlier decree was
held to be collusive. Two reasons for holding that the earlier
decree in the above said case required registration have been
mentioned in paragraph 19 of the judgment, which is to the
following effect:-
"19. Now, let us see whether on the strength of the
decree passed in Suit No. 215 of 1973, the petitioner could
sustain his case as put up in his written statement in the
present suit, despite the decree not having been registered.
According to us, it cannot for two reasons:
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(1) The decree having purported to create right or title
in the plaintiff for the first time that is not being a declaration
of pre-existing right, did require registration. It may also be
pointed out that the first suit cannot really be said to have
been decreed on the basis of compromise, as the suit was
decreed "in view of the written statement filed by the
defendant admitting the claim of the plaintiff to be correct".
Decreeing of suit in such a situation is covered by Order 12
Rule 6, and not by Order 23 Rule 3, which deals with
compromise of suit, whereas the former is on the subject of
judgment on admissions.
(2) A perusal of the impugned judgment shows that the
first appellate court held the decree in question as 'collusive'
as it was with a view to defeat the right of others who had
bona fide claim over the property of Ganpat. Learned Judge
of the High Court also took the same view."
9. Following the above judgment of Bhoop S Singh
(supra), the High Court held that since the compromise
decree dated 04.10.1985 did not declare any pre-existing
right of the plaintiff, hence it requires registration. The High
Court relied on the judgment of Gurdwara Sahib Vs. Gram
Panchayat Village Sirthala and Another (supra) and made
following observations in paragraphs 10, 11 and 12: -
"10. In the present case, in the earlier suit CS No.250-
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A/1984 the petitioner had claimed declaration of title on the
plea of adverse possession and the compromise decree was
passed in the suit. The very fact that the suit was based upon
the plea of adverse possession reflects that the petitioner had
no pre- existing title in the suit property. Till the suit was
decreed, the petitioner was a mere encroacher, at the most
denying the title of lawful owner.
11. The Supreme Court in the matter of Gurudwara
Sahib Vs. Gram Panchayat Village Sirthala reported in
2014(3) MPLJ 36 has settled that declaratory decree based on
plea of adverse possession cannot be claimed and adverse
possession can be used only as shield in defence by the
defendant. It has been held that:-
(SCC p.673, paras 7-8) "7. In the Second Appeal, the
relief of ownership by adverse possession is again denied
holding that such a suit is not maintainable.
8. There cannot be any quarrel to this extent the
judgments of the courts below are correct and without any
blemish. Even if the plaintiff is found to be in adverse
possession, it cannot seek a declaration to the effect that such
adverse possession has matured into ownership. Only if
proceedings filed against the appellant and appellant is
arrayed as defendant that it can use this adverse possession
as a shield/defence."
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12. The plea of the petitioner based upon Sec.27 of the
Limitation Act is found to be devoid of any merit since it
relates to the extinction of the right of the lawful owner after
expiry of the Limitation Act, but in view of the judgment of
the supreme court in the matter of Gurudwara Sahib (supra),
the petitioner cannot claim himself to be the owner
automatically after the expiry of the said limitation."
10. The judgment of Gurdwara Sahib Vs. Gram
Panchayat Village Sirthala and Another (supra) has now
been expressly overruled by a Three Judge Bench judgment
in Ravinder Kaur Grewal and Others Vs. Manjit Kaur and
Others, (2019) 8 SCC 729. This Court held in the above case
in paragraph 62 that once 12 years' period of adverse
possession is over, even owner's right to eject him is lost and
the possessory owner acquires right, title and interest
possessed by the outgoing person/owner.
11. In para 62, following has been laid down:
(Ravinder Kaur Grewal case, SCC pp.778-78) "62. We hold
that a person in possession cannot be ousted by another
person except by due procedure of law and once 12 years'
period of adverse possession is over, even owner's right to
eject him is lost and the possessory owner acquires right, title
and interest possessed by the outgoing person/owner as the
case may be against whom he has prescribed. In our opinion,
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consequence is that once the right, title or interest is acquired
it can be used as a sword by the plaintiff as well as a shield
by the defendant within ken of Article 65 of the Act and any
person who has perfected title by way of adverse possession,
can file a suit for restoration of possession in case of
dispossession. In case of dispossession by another person by
taking law in his hand a possessory suit can be maintained
under Article 64, even before the ripening of title by way of
adverse possession. By perfection of title on extinguishment
of the owner's title, a person cannot be remediless. In case he
has been dispossessed by the owner after having lost the right
by adverse possession, he can be evicted by the plaintiff by
taking the plea of adverse possession. Similarly, any other
person who might have dispossessed the plaintiff having
perfected title by way of adverse possession can also be
evicted until and unless such other person has perfected title
against such a plaintiff by adverse possession. Similarly,
under other articles also in case of infringement of any of his
rights, a plaintiff who has perfected the title by adverse
possession, can sue and maintain a suit."
12. In para 61, this Court has expressly overruled the
Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and
Another (supra).
13. In view of the pronouncement of this Court by the
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three-Judge Bench judgment in Ravinder Kaur Grewal v.
Manjit Kaur [(2019) 8 SCC 729: (2019) 4 SCC (Civ) 453],
the very basis of the High Court for holding that compromise
deed dated 4-10-1985 requires registration is knocked out.
The present is not a case where there is any allegation that
the decree dated 4-10-1985 is a collusive decree. The decree
dated 4-10-1985 was in favour of the plaintiff of 7 biswa
land, Survey No. 203 and for remaining land of Survey No.
203, it was held that it belonged to the defendants.
14. In Bhoop Singh (supra), this Court held that the
earlier decree required registration for the reasons as
mentioned in paragraph 19. The reasons given in paragraph
19 of the above case has no application in the facts of the
present case.
15. This Court in Som Dev v. Rati Ram [(2006) 10
SCC 788] while explaining Section 17(2)(vi) and Sections
17(1)(b) and (c) held that all decrees and orders of the Court
including compromise decree subject to the exception as
referred that the properties that are outside the subject-matter
of the suit do not require registration. In para 18, this Court
laid down the following: (SCC p. 800)
"18. ... But with respect, it must be pointed out that a
decree or order of a court does not require registration if it is
not based on a compromise on the ground that clauses (b)
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and (c) of Section 17 of the Registration Act are attracted.
Even a decree on a compromise does not require registration
if it does not take in property that is not the subject-matter of
the suit."
16. In the facts of the present case, the decree dated 4-
10-1985 was with regard to the property, which was the
subject-matter of the suit, hence not covered by exclusionary
clause of Section 17(2)(vi) and the present case is covered by
the main exception crafted in Section 17(2)(vi) i.e. "any
decree or order of a court". When registration of an
instrument as required by Section 17(1)(b) is specifically
excluded by Section 17(2)(vi) by providing that nothing in
clauses (b) and (c) of sub-section (1) applies to any decree or
order of the court, we are of the view that the compromise
decree dated 4-10-1985 did not require registration and the
learned Civil Judge as well as the High Court erred in
holding otherwise. We, thus, set aside the order of the Civil
Judge dated 7-1-2015 as well as the judgment of the High
Court dated 13-2-2017 [Mohd. Yusuf v. Rajkumar, 2017
SCC OnLine MP 2056]. The compromise decree dated 4-10-
1985 is directed to be exhibited by the trial court. The appeal
is allowed accordingly."
10.1. The judgments in Mohd Yusuf case (supra)10
and Bhoop Singh (supra) were followed by this court in the
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following subsequent decisions:
(i) Khushi Ram v. Nawal Singh reported in (2021) 16
SCC 279:
"30. This Court in Rajkumar case [Mohd. Yusuf v.
Rajkumar, (2020) 10 SCC 264 : (2021) 1 SCC (Civ) 45] held
that since the decree which was sought to be exhibited was
with regard to the property which was subject-matter of suit,
hence, was not covered by exclusionary clause of Section
17(2)(vi) and decree did not require registration. The issue in
the present case is squarely covered by the above judgment.
We, thus, conclude that in view of the fact that the consent
decree dated 19-8-1991 relates to the subject-matter of the
suit, hence it was not required to be registered under Section
17(2)(vi) and was covered by exclusionary clause. Thus, we,
answer Question 1 that the consent decree dated 19-8-1991
was not registrable and the courts below have rightly held
that the decree did not require registration."
( i i ) Ripudaman Singh v. Tikka Maheshwar Chand
reported in (2021) 7 SCC 446
16. The judgments of this Court in Bhoop Singh
[Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] and K.
Raghunandan [K. Raghunandan v. Ali Hussain Sabir, (2008)
13 SCC 102] were found to be inconsistent in an order
reported in Phool Patti v. Ram Singh [Phool Patti v. Ram
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Singh, (2009) 13 SCC 22] and the matter was thus referred to
a larger Bench. The larger Bench in the judgment reported as
Phool Patti v. Ram Singh [Phool Patti v. Ram Singh, (2015)
3 SCC 465: (2015) 2 SCC (Civ) 312] did not find
inconsistencies between the two judgments.
17. Bhoop Singh [Bhoop Singh v. Ram Singh, (1995)
5 SCC 709] was a case dealing with both the situations,
decree between the parties where the decree- holder does not
have any pre-existing right in the property and also the
situation where decree-holder has a pre-existing right. It was
the second situation where the decree-holder has a pre-
existing right in the property, it was found that decree does
not require registration. In K. Raghunandan case [K.
Raghunandan v. Ali Hussain Sabir, (2008) 13 SCC 102], the
dispute was not (2020) 10 SCC 264 (2021) 16 SCC 279
(2021) 7 SCC 446 amongst the family members but between
neighbours regarding right over passage. Obviously, none of
them had any pre-existing right over the immovable property
in question.
18. In view of enunciation of law in Bhoop Singh case
[Bhoop Singh v. Ram Singh, (1995) 5 SCC 709], we find
that the judgment [Tikka Maheshwar Chand v. Ripudaman
Singh, 2016 SCC OnLine HP 3808] and decree of the High
Court holding that the decree requires compulsory
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registration is erroneous in law. The compromise was
between the two brothers consequent to death of their father
and no right was being created in praesenti for the first time,
thus not requiring compulsory registration. Consequently, the
appeal is allowed and the suit is decreed."
9. In wake of the aforesaid enunciations, now this Court is required to
be see as to whether the Condition No.2 which has been imposed by the
learned Trial Court would be sustainable or not.
10. As per averments made in the plaint filed by the present
respondent/plaintiff, the house in question situated on the land bearing
Survey No.98 is alleged to be of the ownership of her mother who expired
on 06.02.1993 and after her, she being daughter became owner and
possession holder, thus, fact which comes out is that there was a pre-existing
right was alleged by respondent/plaintiff over the said house.
11. In contrast to the pleadings made in the plaint, the
petitioners/defendants in their written statement had alleged that the property
never belonged to the mother of the plaintiff/respondent rather it was the
property of their father Sona who had expired on 19.05.1990 and after his
death, his property was mutated in the names of petitioners/defendants and
their mother Ajudhadi Devi and as the mother of the petitioners had already
expired on 05.07.2012, the property has vested in the petitioners and has
been mutated in their names in the municipal records as well as the revenue
records, thus, the present petitioners have also claimed their exclusive
ownership right over the property. By way of settlement, the factum of
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ownership of the petitioners was accepted by the respondent/plaintiff and
accordingly, a compromise was entered into between the parties.
12. From the aforesaid facts, it could be gathered that the petitioners
from the very inception are alleging their pre-existing rights in the property
and by way of compromise, the pre-existed rights were perfected, which
would imply that case would be fall under the exception of Section 17(2)(vi)
of the Act, 1908, as the compromise decree has not created any fresh rights
of any of the parties in the property.
13. Also since it is not the case of the any of the parties that the said
compromise was collusive and as in the wake of plaint averments, the
compromise decree pertains to the subject property of the suit, this Court
finds that Condition No.2 imposed by the learned Trial Court of getting the
said decree registered for its execution doesn't appears to be legally
sustainable.
14. Accordingly, while allowing the present petition, the Condition
No.2 i.e. आ ि का वतन ितवाद गण ारा विधवत ् र ज े शन एवं टा प शु क अदा करने के
प ात होगा।" is hereby deleted. Remaining part of the Conditions imposed by
the learned Trial Court shall remain intact.
15. With the aforesaid observation, the present petition is allowed and
disposed of.
(MILIND RAMESH PHADKE)
JUDGE
pwn*
