Chanan Singh vs Swaran Singh

Anil Kshetarpal, J.

The plaintiff-appellant is in the Regular Second Appeal against the judgment passed by the learned First Appellate Court reversing the judgment

passed by the trial Court.

Parties to this litigation are brothers. The plaintiff-appellant filed a suit for declaration claiming that the judgment and decree dated 02.12.1978 is illegal,

null and void. He has further submitted that the decree is result of fraud and misrepresentation and the decree cannot be used for the purpose of

transferring the property as the decree is not registered.

The defendant contested the suit pleaded that the plaintiff is not even residing in the village but also has sold his remaining property to different

persons. It is further claimed that the plaintiff never remained in cultivating possession of the land after passing the decree. It was claimed that the

Civil Court decree was passed after the plaintiff admitted the claim made by the defendant(plaintiff) in the earlier suit. The defendant denied that

fraud was played upon plaintiff.

Learned trial Court after appreciation of the evidence available on the file held that the decree dated 02.12.1978 is null, void, in operative, in effective

and not binding on the rights of the plaintiff. The Court further found that the decree was obtained by playing fraud with the plaintiff, hence set aside.

The defendant-respondent filed the first appeal. Learned first Appellate Court has chosen to reverse the judgment passed by the learned trial Court

only on the ground that the Court in a subsequent suit cannot go behind the decree. It may be significant to note that the defendant-respondent filed an

application under Order 41 Rule 27 CPC, which was allowed. By way of additional evidence, the defendant-respondent pleaded that the plaintiff had

in fact executed an agreement to sell in favour of defendant-respondent for a sum of Rs.15,000/- and Rs.3,000/- was received as earnest money. In

fact, two agreement to sells were pleaded.

Learned First Appellate Court also recorded a finding that the plaintiff has not appeared in the witness-box to deny the execution of these two

agreement to sells dated 31.07.1978 Ex.DX, accepted the appeal.

In the considered opinion of this court, following substantial questions of law arise for determination:-

Whether a consent decree passed by the Court which is established to have been secured in lieu of the sale of the property can be used for transfer

of title in the immoveable property worth more than Rs.100?

Whether the Court in a subsequent suit is debarred from examining the facts which resulted into the consent decree under challenge? The

defendant-respondent has filed an application for additional evidence before the First Appellate Court. He has brought on record agreement to sell

executed by the plaintiff in his favour. The agreement to sell shows that out of Rs.15,000/-, Rs.3,000/- was paid as earnest money. Thereafter, it is the

case of the defendant-respondent that the remaining payment was made and the plaintiff suffered a statement in his favour in the civil suit resulting

into a Civil Court decree. In fact, two agreement to sells were pleaded. Once, the basis of the consent decree was a sale transaction and not a family

settlement, the Civil Court decree cannot be used as an instrument of transfer of the property. The provisions of the Registration Act and the Stamp

Act cannot be allowed to be circumvented. A Civil Court decree is not a substitute of a sale deed. The transfer of the immoveable property is

permissible only through the registered document.

As per Section 17, registration of the immoveable property worth more than Rs.100/- is compulsory. Here in the present case, it is the defendant-

respondent, who has pleaded that there was an agreement to sell between the parties and thereafter in order to save stamp duty and registration

charges, Civil Court decree was got passed by consent. It may be noticed that before the First Appellate Court, defendant-respondent even moved an

application for amendment of the written statement so as to add these pleadings.

So, it is apparent that the Civil Court decree was not result of any family settlement but it was in fact a sale transaction camouflaged as a family

settlement. The Courts have to be very careful while passing consent decree and are required to see whether there is a family settlement or the

decree is being got passed to be used as a substitute for sale deed. No doubt in the previous suit which resulted into a decree, it was pleaded by the

plaintiff that there was a family settlement, however, now as per the amended pleadings and the additional evidence led by the defendant-respondent,

it is clear that the plea of family settlement was factually incorrect. Such being the position, the earlier judgment and decree passed by the Court

cannot be sustained.

Learned First Appellate Court has held that in a subsequent suit, the Court cannot go behind the decree. Normally in a subsequent suit, the Court

would not go behind the decree but from the pleadings of the parties, who are claiming the right under the Civil Court decree, once it is established

beyond any doubt that the decree was got passed to circumvent the provisions of the Registration Act and is being used as an instrument of the

transfer of the property, the Court would not be debarred from examining the facts which resulted into the passing of the judgment and decree.

In view of the discussions made above, both the questions of law are answered in favour of the appellant. The judgment and decree passed by the

learned First Appellate Court is set aside and that of the trial Court is restored.

Regular Second Appeal is allowed.

All the pending miscellaneous applications, if any, are disposed of, in view of the abovesaid judgment.