Lakhu vs Sadhu and Others

D.B. Lal, J.—This second appeal is directed against the judgment of the District Judge, Kangra, wherein, reversing the judgment of the Subordinate Judge Una, he has dismissed the suit of Lakhu appellant which was for permanent injunction restraining Sadhu Defendant No. 1 from making construction over property known as "Taur" (dilapidated building site) alleged to be belonging to the Plaintiff and, in the alternative, for delivery of possession of the said Taur to the Plaintiff. The material facts which have a bearing on the points at issue are, that Lakhu appellant claimed to be the owner in possession of the Taur which according to him formerly belonged to Kesria who was tenant to Bhagat Ram. Subsequently Kesria died without leaving any heir and the disputed Taur reverted to the proprietor Bhagat Ram. On 1-6-1954 by a registered sale deed (Ex.P. 1) the disputed Taur was sold by Bhagat Ram to Lahku and Hamira. The latter was predecessor-in-interest of the Defendants 2 to 4 who are made Respondents in the appeal. In this manner, the Plaintiff Lakhu claimed a title for the Taur and also claimed his possession oyer it. According to the Plaintiff, Sadhu Defendant attempted interference in his possession and wanted to make construction. Therefore, he filed the suit for permanent injunction and in the alternative for delivery of possession.

The Defendant-Respondent Sadhu contested the suit on the allegations, that he is owner in possession and that his ''chhapar'' and ''khurlis'' (cattle troughs) exist over the Taur from the last 50 years or so. After the death of Kesria, the Taur could revert to the entire body of proprietors and not to Lakhu alone. In fact, Sadhu Defendant also claimed to be one of the proprietors in the village. Apart from this according to Defendant a little more than six months after the execution of the sale-deed, a compromise was brought into existence amongst Lakhu, Sadhu and Hamira. As a result to that compromise, they settled their existing disputes regarding possession. Sadhu possessed another Taur which was adjacent to the Taur in dispute. Besides that, he was also in possession over specific portions inside the disputed Taur. All the three parties agreed to retain joint possession over the two Taurs. A memorandum containing the compromise was executed. As a result to that compromise, joint possession was sustained and the Plaintiff could not claim exclusive title or possession. It was also contended that the Plaintiff was estopped from claiming exclusive possession and as, such no injunction could be granted in his favour.

It was contended on behalf of the Plaintiff that the compromise deed dated 21-7-1951 required registration and hence was inadmissible in evidence.

The learned Subordinate Judge decreed the suit and held that the Plaintiff Lakhu got title from Bhagat Ram and that the Defendant No. 1 Sadhu could not claim title under the compromise deed which required registration. According to the learned Subordinate-Judge, he was satisfied with the evidence produced that exclusive possession had remained with the Plaintiff.

The Defendant-Respondent came in appeal before the District Judge and succeeded, inasmuch as, that the suit was dismissed. It was held that the compromise deed was binding upon the parties. The defect regarding registration was not sustainable because by the application of the doctrine of part performance incorporated in Section 53A of the Transfer of Property Act, the Defendant could successfully plead joint possession over the disputed Taur on the basis of the compromise dated 21-7-1954. The learned District Judge also held that after the death of Kesria, the disputed Taur reverted to the entire body of proprietors, and the Plaintiff as well, as the Defendant No. 1 comprised the body of such proprietors. With these findings, the suit of Lakhu Plaintiff was dismissed. He felt aggrieved of the decision and preferred this second appeal.

The learned Counsel for the appellant contested in the foremost, that the registered sale-deed could not be set aside by the subsequent deed of compromise which, according to him, required registration. He has reinforced his argument by making a submission that the compromise deed transferred title of property of the valuation of more than Rs. 100 and hence required registration. It would than be desirable to set out the recitals made in the compromise deed. The executants of the deed arc Hamira, Lakhu and Sadhu. At first, they described the Taur in dispute and stated that Lakhu and Hamira no doubt purchased it, but in a portion of the same possession actually existed of Sadhu as he had his ''khurlis'' over it. Thereafter the three parties recited that there was another adjacent Taur over which Sadhu was in exclusive possession. The recital further goes on to say that all the three parties wanted to keep the two Taurs in joint possession and for common good. Therefore, they stated that in future they would have the two Taurs jointly and their respective possession of whatever nature it is would continue at the spot. None of the party would try to exclude the other from possession. The party committing breach was liable to pay some compensation. Three copies of the compromise deed were prepared and each of the party was handed over one copy for future reference. It is manifest from these recitals that the parties possessed defined antecedent title in the property. There was no declaration of fresh title in favour of anybody. Another Taur was brought in the common pool. A declaration of joint possession was made. It was not provided that cither of the party would exclude the other in the matter of enjoyment. Three copies of the document were prepared and each party was given one copy for future use. This was a sort of compromise brought into existence for settling future disputes. In fact, no transfer of property took place and as such registration was not required. Although the three executants did not belong to the same family, yet the essentials of a family-arrangement were all present and the following observation of their Lordships of the Supreme Court in Tek Bahadur Bhujil Vs. Debi Singh Bhujil and Others, can usefully be availed of as applicable to the present situation:

Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties is to be founded. It is generally prepared as a record of what had been agreed upon, in order that there are no hazy notions about it in future. It is only when the family-arrangement is reduced in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is" brought about by the document as such, that the document requires registration, because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration u/s 17 of the Registration Act.

It cannot be stated that the purpose of the document was to use it as a proof of transfer of title from one party to the other. In fact, antecedent title existed in favour of Lakhu and Hamira for one Taur and in favour of Sadhu for the other Taur. There was possession of Sadhu found in the Taur belonging to Lakhu and Hamira. "He did not want to give up that possession and as a consideration of that, offered his own Taur for joint possession. Therefore, despite the registered sale-deed and acknowledged title in favour of Sadhu for the other Taur, all the three parties compromised to keep the two Taurs in their joint possession and that was the real object of the compromise deed. It was an arrangement brought into existence for the enjoyment of the property; The document was not intended to be foundation of title in favour of or against any party. Therefore, in my [opinion, no registration was required of this document.

Besides this, as pointed out by the learned District judge, Section 53A of the Transfer of Property Act conferred complete defence upon Sadhu as the agreement existed in writing and the transferee Sadhu in part performance of the contract contained in that agreement continued possession over the property and transferred his own Taur to Lakhu and Hamira for their enjoyment and thus performed his part of the contract. It has been held in Karon Mal Jamna Dass v. Parmanand L. flam Sarup and Ors. AIR 1955 Pun 252 that the doctrine of part peformance as embodied in Section 53A, Transfer of Property Act, is available only to the Defendant [to protect his possession. As such Sadhu Defendant could avail of that defence and in that contingency also, the deed of compromise would be available for his assistance although it was not registered.

Yet another defence, in my opinin, is open to Sadhu Respondent, The deed of compromise could at any time be utilized for a collateral purpose of proving the nature of possession enjoyed by respective parties. It is evident Sadhu had his ''khurlis'' and perhaps ''chhapers'' also, over the disputed Taur. According to him, his possession lasted from 50 years. The said possession was also acknowledged to be as such by the appellant, according to the recitals made in the deed of compromise. Thus the possession of Sadhu Respondent is proved over the disputed Taur and the deed of compromise can be utilized for the collateral purpose of proving such possession. In Padina Vithoba Chakkayya v. Mohd. Multani and Anr. AIR 1963 SC 70, their Lordships were considering a question that arose for cancellation of a registered sale deed. There was an endorsement of cancellation on the back of the sale deed, but the said endorsement was not registered. It was held that the endorsement does not extinguish title of vendee but was admissible to show "character of possession of vendee". Applying the same test in the present case, the Respondent can successfully plead that the compromise deed proves the character of his possession which is obviously joint possession with the Plaintiff. This fact also disentitles the appellant from claiming the relief of injunction.

The learned Counsel for the appellant then submitted, that Sadhu Defendant did not claim joint possession in his written statement. As such no amount of evidence could be adduced in support of such plea. He relied upon the following observation of Viscount Dunedin in AIR 1930 57 (Privy Council)

Where a claim has been never made in the defence presented no amount of evidence can be looked mto upon a plea which was never put forward.

Their Lordships of the Supreme Court have supple mented this observation in Nagubai Ammal and Others Vs. B. Shama Rao and Others, After referring to Siddik Mahomed Shah v. Mt. Saran their Lordships held that the true scope of this rule is that evidence let in on issues on which the parties actually-went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. In the present case as evident from, the judgment of the Subordinate Judge, the deed of compromise was set up by the Defendant and controverted by the Plaintiff on the point of registration. It was very much pleaded by the Defendant during the course of trial that under the deed of compromise he was conferred joint possession over the disputed Taur. The learned Subordinate Judge accepted the plea regarding registration and rejected the document. The question was again agitated before the District Judge and joint possession was pleaded on the basis, of the deed of compromise. The doctrine of part performance was applied. It was held that joint possession was proved and no decree could be granted. Therefore, the parties already know that the deed of compromise was being set up between them and a case of joint possession was being canvassed on behalf of the Defendant. In fact, an issue was framed which related to this agreement or deed of compromise. The parties adduced evidence and full opportunity was afforded to them to meet such a plea. In the circumstances, it is too late in the day to contend that the appellant was prejudiced because no definite plea existed in the written statement regarding joint possession which is now claimed by the Defendant.

In the last, a desperate plea was taken by the learned Counsel on behalf of the appellant inasmuch as, he stated that a decree for joint possession should be passed in favour of the Plaintiff-appellant. In my opinion, even such a decree cannot be passed in view of the present contentions made by the Plaintiff and the character of relief demanded by him. It is manifest, the Plaintiff claims exclusive title in his favour and Defendants 2 to 4. He has nowhere pleaded that he possesses joint title in his favour and in favour of Sadhu Defendant No. 1. Therefore, in the plaint there was an absolute denial of title or right of possession in favour of Sadhu Respondent. The Plaintiff claims the relief of permanent injunction which pre-supposes that exclusive title and possession are with him. The Defendants 2 to 4 have not supported the Plaintiff and have very much adhered to the compromise deed and have supported the Defendant No. 1. Therefore, in my opinion, the Plaintiff cannot be granted a decree for joint possession for which he has neither asked expressly in the plaint, nor can that relief be inferred impliedly from the facts made out in his pleadings.

The upshot of all that I have stated above is, that the Plaintiff-appellant neither possessed exclusive title nor possession over the disputed Taur. As such the very foundation for claiming the relief of permanent injunction was not made out. The suit was rightly dismissed by the learned District Judge. The second appeal has thus no force and is dismissed with costs to the Respondent No. 1.