Balbir Singh and Others vs Satwant Singh and Others

Gokal Chand Mital, J.—Assa Singh had two wives. From one wife, he had two sons, Gurnam Singh and Jagroop Singh and from the other Balbir Singh and two other sons. On his death all the five sons succeeded with equal shares. Gurnam Singh mortgaged his share to Balbir Singh and his two brothers for Rs. 5600/- Later on he sold his share to Balbir Singh and his two brothers for Rs. 10,500/-. Jagroop Singh failed in his effort to preempt the sale as his suit for pre-emption was dismissed by this Court, On 31st August, 1966, sons of Gurnam Singh filed a suit to challenge the sale under custom on the ground that it was without consideration and legal necessity, and did not affect their right to succeed. That suit was compromised on 5th October, 1967 and in terms of the compromise, decree Exhibit P8 was passed. It was to the effect that sons of Gurnam Singh were to be the owners and mortgagors of the property and they were to be in symbolical possession of the same, and they were entitled to actual possesion of the suit land on payment of Rs. 10,500/- by Balbir Singh and his two brothers as mortgagees.

On 17th June, 1974 sons of Gurnam Singh filed an application for redemption before the Collector, on payment of Rs. 5600/-. When the mistake about the redemption amount was noticed, on 16th September, 1974 another application was filed before the Collector and the redemption amount was said to be Rs. 10,500/-. The Collector ordered the redemption of the land on payment of Rs. 10,500/- and for delivery of actual physical possession to sons of Gurnam Singh.

Balbir Singh and his two brothers filed civil suit to challenge the order of redemption on various grounds. Both the Courts below dismissed the suit and this is Plaintiffs second appeal.

The first argument raised by Smt. Ish Singh, Advocate, is that the compromise decree dated 5th October, 1967 was collusive and in any event the Court had no jurisdiction to convert the registered sale deed into a mortgage and the Plaintiffs should be treated as vendees under the sale and their suit to challenge the redemption order should be decreed. In support of the argument, reliance is placed on Ch. Mohammad Afzal v. Ch. Din Mohammad AIR 1947 Lah. 117 and Bharpur Singh v. Mallan Singh AIR 1952 PEPSU 54. Ch. Mohammad Afzat''s case has no be ring on the facts of the present case. However, Bharpur Singh''s case (supra) has some bearing but on a close scrutiny of facts, I find it is distinguishable, in case it is to be considered that the facts of both the cases are identical I am of the view that no sufficient reason has been given in Bharpur Singh''s case (supra) as to how a compromise decree arrived at between the parties can be thrownover board. Under the Transfer of Property (Amendments) Supplementary Act, 1929, Section 17(i)(e) was added, and Section 17(2)(vi)of the Registration Act, was amended wherein it was provided that the compromise decrees in regard to immovable properties of the value of Rs. 100/- or more would not require registration and this would bind the parties. Before that, there was some dispute which was resolved by the aforesaid amendment.

May be in Pepsu, the Courts had not been converting sales into mortgages in suits under Customary Law but in Punjab whenever justice or equity demanded, the sale was converted into mortgage, and this is what the parties have agreed to on the peculiar facts of this case.

It was then urged that the Plaintiffs have raised some construction on the land in dispute and they would be deprived of the value of the superstructure. It is the Plaintiffs'' own case that when compromise was arrived at, the superstructure was in existence. The amount of Rs. 10,500/- was considered by them as sufficient to compensate them while leaving the possession of the suit land, and, therefore, no argument can be raised in equity.

For the reasons recorded above, there is no merit in the argument raised and no exception can be taken to the decisions of the two Courts below.

Civil Misc. No. 256/C of 1978 was filed under Order 41 Rule 27 of the CPC to produce certain additional evidence to show the superstructure raised by the Plaintiffs on the land in dispute. In view of the finding already recorded, even if the application is allowed and the additional evidence is read in evidence, it does not advance the case of the Appellants any further.

In view of the aforesaid reasons, the appeal is dismissed with no order as to costs and the Civil Misc. stands disposed of.