S.Kuldeep Singh vs S.Prithpal Singh

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 81_OF 2011

S. KULDEEP SINGH & ANR. APPELLANT(S)

VERSUS

S. PRITHPAL SINGH RESPONDENT(S)

J U D G M E N T

Hrishikesh Roy, J.

1. The present appeal is against the judgment and

order dated 28.10.2009 in LPA No.174/2008 where under

the Division Bench of the High Court of Jammu & Kashmir

at Srinagar upheld the decree in favour of the

respondent-plaintiff rendered on 31.07.2003 by the

learned District Judge, Anantnag. The suit was filed

seeking declaration and possession in respect of the

land measuring 11 Kanals and 15 marlas falling within Signature Not Verified Digitally signed by JAGDISH KUMAR Date: 2022.08.02 15:58:22 IST Reason: the survey nos.1829 and 1838 situated at Ranbirpora,

Page 1 of 39 Anantnag. The appellants are the natural son and

daughter of late S. Sucha Singh whereas the

respondent/plaintiff S. Prithpal Singh claimed to be

the adopted son of Sucha Singh.

2. In the suit, Prithpal Singh as the plaintiff

claimed that he received gifts of land in his favour

from Sucha Singh. But although the suit schedule

properties were more, the plaintiff confined his relief

to the land measuring 11 kanals and 15 marlas mentioned

above and not any other lands of his adoptive father

Sucha Singh. In the plaint, Prithpal Singh enclosed

certified copy of a compromise deed in between himself

and one Abdul Jalil Khan and the claim of the plaintiff

centers around the said compromise deed dated

18.12.1975. The terms of the compromise being relevant

are extracted hereinbelow:

“COMPROMISE PARTIES Sir, compromise is submitted as under:-

1. That in the case entitiled above the parties have amicably compromised as under;

out of Survey No. 1829 = Four kanals and five marlas and out of Survey No. 1835 Min

Page 2 of 39 one Kanal fifteen marlas in total six kanals including trees and houses situated at Ranbirpora Tehsil Anantnag will remain under the ownership of the Appellant in consideration of the Appellant under Survey No. 1829 = 3 Kanals 15 marlas, 1838 min 8 Kanals in total = 11 kanals 15 marlas including trees situated at village Ranbirpora Tehsil Anantnag gives up his tenancy rights and hands over its possession to the Respondent who will be considered its owner, no dispute remains in future.

2. That the parties will bear their own costs of litigation, in light of compromise the land be recorded in the name of parties in the Revenue Registers.

3. It is prayed the compromise be accepted and the appeal decided on the condition mentioned that will do justice.

Respondent The Parties Accepted the compromise Appellant Left Thumb impression of Abdul jalil Pritpal Singh Thumb Impression

I also accept the Compromise Sardar Sacha Singh S/o Amar Singh Ranibirpora Anantnag Father of Respondent Thumb Impression.”

3. As can be seen Sardar Sucha Singh appended his

thumb impression to the above compromise deed with the

expression “I also accept the compromise”. The Deputy

Page 3 of 39 Commissioner, Anantnag (“D.C” for short) thereafter

passed an order on 24.12.1975 on the File No.168/06

recording the presence of both parties and the

settlement made amongst them whereunder the tenant

Abdul Jalil Khan gave up his tenancy rights over

certain parcels of land and for the earlier noted 11

kanals and 15 marlas including the trees situated on

the said parcel at village Ranbirpora, the respondent

was accepted to be the owner by the tenant.

Consequential directions were accordingly issued by the

D.C for entering the compromise in the revenue records

and as such the order dated 24.08.1974 by the Circle

Officer regarding correction of tenancy was disposed of

in light of the compromise amongst both parties.

4. Parallelly, during the aforesaid proceedings, on

1.5.1972 the Jammu & Kashmir Agrarian Reforms Act, 1972

(hereinafter referred to as, “the 1972 Act”) came into

force under which new rights and obligations were

created and jurisdiction was conferred on the competent

authority for the purpose of correcting the revenue

Page 4 of 39 records. Section 2 (6) of this Act gave a wide

interpretation to the term “owner” for the purposes of

revenue records and included “inferior owners”, and

those claiming through the proprietor. Similarly,

under Section 2(7), “personal cultivation” by a person

also included cultivation by owner and his adopted son.

5. On the strength of Section 50 of 1972 Act, the

Jammu and Kashmir Agrarian Reforms Rules, 1973 (for

short, “the 1973 Rules”) were notified. Rule 5 provided

that the Khasra Girdwari Register for Kharif 1971 upon

due verification and authentication, was to be the

record of personal cultivation of lands as on 1.9.1971

(cutoff date). The Circle Officers under Rule 7 were

required to visit each village within their

jurisdiction to verify, amend, and authenticate entries

for Kharif Register Girdwari 1971. Rule 15 provided

the procedure for amendment of “return” or for

collecting information for filing revenue entries under

Rule 11. This shows that after the cutoff date of

1.9.1971, the Circle Officers were given new

Page 5 of 39 responsibility for verifying and compiling land revenue

entries and the procedure for amending entries in case

of errors or disputes, were also prescribed.

6. At that stage, Abdul Jalil Khan claiming tenancy

rights on the subject land applied for correction of

tenancy to the Circle Officer and exercising the power

for correction of tenancy, the Circle Officer on

24.8.1974 ordered the application made by the tenant

Abdul Jalil Khan. The tenant Abdul Jalil Khan being

aggrieved preferred appeal before the DC under the 1972

Act but in the meantime on 25.3.1975, the Jammu &

Kashmir Agrarian Reforms (Suspension of Operations

Act), 1975 (hereinafter “the Suspension Act, 1975”) was

notified. The suspension was to be in effect initially

till 19.12.1975 but was extended later to 30.3.1976.

These dates are significant because the compromise

dated 18.12.1975 was entered while certain provisions

of 1972 Act remained inoperative because of the

Suspension Act, 1975.

Page 6 of 39

7. On 1.6.1978 the new Jammu & Kashmir Agrarian

Reforms Act, 1976 (hereinafter referred to as, “the

1976 Act”) came into force with effect from 13.07.1978,

replacing the suspended Act of 1972.

8. In course of verifying and correcting the entries

in terms of the order passed by the Collector on

24.12.1975 (during the period while the Act of 1972 was

under suspension) inquiries were conducted and the

competent officer attested mutation no.4133 whereby the

land with trees to the extent of 11 Kanals and 15

Marlas, were re-recorded in the name of late S. Sucha

Singh. The appellants, who are the natural son and

daughter of the land owner, claimed that since that

date till today, they are in possession of the land

although in the interregnum, their father S. Sucha

Singh died.

9. The civil Suit by the respondent no.1 was initially

instituted before the Jammu & Kashmir High Court, for

declaration and possession of land and it was claimed

in the Suit by the adopted son that the appellants have

Page 7 of 39 forcibly dispossessed him from the land claimed in the

Suit. The respondent has founded his claim over Sucha

Singh’s land on the basis of the compromise dated

18.12.1975 and the subsequent order recording the

compromise passed by the DC on 24.12.1975. Although the

respondent claimed to be adopted son of Sucha Singh

(appellants’ father), similar assertion was not made on

such basis for other properties of Sucha Singh. The

Suit filed before the High Court was transferred in

1995 to the Court of the District Judge, Anantnag where

the appellants as the defendant nos.1 and 2 filed their

written statement stating, inter alia, that the

compromise and the order passed thereon by the D.C on

24.12.1975, was without jurisdiction and the same do

not confer any right on the plaintiff. On the given-up

claim based on the gift executed by late Sucha Singh,

the stand of the appellants/defendants was that the

documents were revoked by their father during his life

time and the revocation deed executed in September,

1975 was registered on 22.1.1976. Notably the

Page 8 of 39 amendments sought by the plaintiff to the plaint was

not pressed/rejected and the relief in the suit was

confined to 11 Kanals and 15 Marlas of land based on

the compromise dated 18.12.1975 and the Deputy

Commissioner’s order dated 24.12.1975.

10. The learned District Judge took note of the

following pedigree table of the parties:

S. Sucha Singh

Mrs. Raj Kaur (Dfdt. 2) Mrs. Isher Kaur (2nd wife) (1st wife)

Mrs. Shant Kaur (Dfdt.5)

Prethipal Krishna Kaur Nasib Kuar Kuldeeps Singh Singh (Plntf.) Dfdt. 3 Dfdt. 4 Contesting Dfdt. 1 (Adopted Son) (1) (2) (3) (4)

11. Framing several issues on the basis of the

pleadings of the parties, the learned Judge after

considering the materials on record found in favour of

the plaintiff that he is the owner of 11 Kanals and 15

Marlas in Survey Nos. 1829 and 1838. This finding was

based primarily on the compromise dated 18.12.1975

Page 9 of 39 between the plaintiff and Abdul Jalil Khan and

accordingly a decree for possession of land was passed

in favour of the plaintiff-respondent and against the

defendants-appellants.

12. The Civil First Appeal No.117 of 2003 was then

filed by the appellants and likewise Cross Appeal No.72

of 2004 was filed by the respondent assailing the

District Judge order dated 31.7.2003 but the learned

Single Judge under his 24.9.2008 common order,

dismissed both appeals and thereby the decree/order

dated 31.7.2003 came to be upheld.

13. Thereafter the appellants preferred the LPA No.174

of 2008 and specifically questioned the jurisdiction of

the DC to pass the 24.12.1975 order by contending that

the compromise dated 18.12.1975 was a nullity.

According to the appellants, their father late Sucha

Singh through whom the plaintiff claims, was the owner

of the subject land and unless the land owner

transferred the land in favour of the plaintiff,

through a valid registered instrument, the plaintiff

Page 10 of 39 can have no claim over the subject land. It was

specifically contended that under Section 49 of the

Registration Act, 1908 and Section 138 of the Jammu &

Kashmir Transfer of Property Act, 1920 which are

applicable to the State, claim for title or of

possession of immoveable property without a registered

instrument, cannot be entertained. Their say was that

there is nothing on record that Sucha Singh had

transferred any land to the plaintiff through a valid

instrument. On the compromise, which was the basis for

plaintiff’s claim, the appellants projected that in

terms of Section 3 of the Suspension Act, 1975, the

operation of the concerned provisions of the 1972 Act

and all proceedings thereunder, remained in suspension

until 30.3.1976 and therefore the 18.12.1975 compromise

and the DC’s order dated 24.12.1975 for correction of

revenue records based on the compromise are non-est as

the same was passed while the 1972 Act was under

suspension.

Page 11 of 39 14. Having considered the rival projections, the High

Court observed that the only question which requires

determination in the appeal is, what is the effect of

the compromise. To give the answer, the Court noted

that the certified copy of the compromise does not

disclose that the same was in connection with a

proceeding initiated for resumption of land but noted

that the same related to correction of revenue records.

According to the Court the plaintiff being an Army

personnel, was in a better position to resume the land

which was under the tenancy of Abdul Jalil Khan and

therefore the plaintiff was authorized to launch the

proceeding and enter into compromise with the tenant

Abdul Jalil Khan. The Division Bench also noted that

the owner of the land Sucha Singh had acknowledged the

compromise deed which recorded the respective ownership

of the tenant Abdul Jalil Khan and the plaintiff, for

the concerned portions of the land of Sucha Singh. On

the issue of the transfer of land being without a

registered document, the Court observed that the

Page 12 of 39 instrument of compromise where a tenant accepts that

his landlord is in possession of certain land over

which the tenant makes no claim and surrenders his

tenancy, would not require registration. The

plaintiff’s right on the concerned land is also

recognized by the Sucha Singh through his endorsement.

Moreover, since the appellants had not taken steps to

appropriately challenge the 18.12.1975 compromise

within the period of limitation, the title of the

plaintiff stood perfected. The appeal accordingly was

dismissed under the impugned judgment.

15. We have heard Mr. Huzefa A. Ahmadi, learned Senior

Counsel appearing for the appellants. Mr. S.N.Bhat,

learned Senior Counsel appears for the respondent

(plaintiff).

16.1 Explaining the implications of the thumb

impression of late Sucha Singh on the compromise deed,

Mr. Ahmadi, learned Senior Counsel submits that the

same related only to the internal arrangement regarding

the tenancy of Jalil Khan and does not in any way

Page 13 of 39 transfer any right of ownership to the plaintiff.

According to the counsel the endorsement “I accept the

compromise” does not in any manner suggest that Sucha

Singh had intended to confer title of his land to the

plaintiff.

16.2 Focusing on the appellants’ challenge to the

compromise, Mr. Ahmadi, learned Senior Counsel submits

that the compromise was entered in a proceeding for

correction of revenue records and the same must

therefore be understood in that context. Adverting to

the wide definition of “owner” and “personal

cultivation” under Section 2 (6) and Section 2 (7)

respectively under the 1972 Act, it is argued that the

definition is wide and includes persons claiming

through the legal owner and also “adopted sons” of the

owner. Accordingly, it is argued that acceptance of the

plaintiff as an owner, does not imply that Sucha Singh

had intended to transfer his ownership right in favour

of the plaintiff. Projecting the limited power of the

Circle Officer which was confined to compiling and

Page 14 of 39 correcting revenue records as they existed on the

cutoff date 1.9.1971, it is submitted that the

compromise in the revenue correction proceedings under

Chapter III of the Rules, can only relate to revenue

records and to possession of land in capacity as

personal cultivator. It is therefore argued that the

compromise cannot and does not confer title on the

plaintiff.

16.3 Highlighting the requirement of mandatory

registration under Section 17 of the Registration Act,

1977, it is next argued that the compromise does not

comply with the mandate of law and since title is

claimed by the plaintiff only on the strength of

compromise, the same could not have been granted. The

learned senior counsel has relied on Bhoop Singh v. Ram

Singh Major1 to argue that the law requires registration

of compromise order which creates rights, title or

interest in immovable property. The ratio in K.

Raghunandan & Ors. v. Ali Hussain Sabir & Ors.2 is also

1 (1995) 5 SCC 709 2 (2008) 13 SCC 102

Page 15 of 39 cited by the counsel to point out that the Court has

held that since the plaintiff claims title from the

compromise deed, as distinguished from recognition of

pre-existing rights, the same would necessarily require

registration. The judgment in Phool Patti v. Ram Singh3

is also pressed home by the counsel to buttress his

argument. Appellants question how legal title can be

secured on the strength of the compromise arrived at in

the proceedings initiated by the tenant Jalil Khan

which arose from a change in the entry in the records,

during the process of verification under the 1972 Act.

The document in question in any case is required to be

registered, in terms of Section 49 of the Registration

Act and Section 138 of the Jammu & Kashmir Transfer of

Property Act and the submission of Mr. Ahmadi is that

without such registration, the title rights for the

plaintiff do not get crystalized.

16.4 Adverting to the provisions of Section 17 (2)

(vi) of the Registration Act,1977 as applicable to the

3 (2015) 3 SCC 465

Page 16 of 39 State of Jammu & Kashmir, it is next argued that the

DC’s order dated 24.12.1975 was required to be

registered as the compromise was in consequence of

revenue proceeding and not by a competent Court. Since

the DC’s order was based on the compromise which also

dealt with 6 Kanals land forming part of Survey

Nos.1829 and 1838 which was declared in favour of the

tenant Jalil Khan, it is argued by Mr. Ahmadi that

since the suit of the plaintiff is not restricted only

to the 11 Kanals and 15 Marlas claimed by him, the DC’s

order endorsing the compromise would require

registration, in order to legally recognize plaintiff’s

title, on the strength of these two documents.

16.5 According to the appellants, the DC’s order is of

no legal effect as the same was passed while the 1972

Act was under suspension and during that period the

authority lacked jurisdiction to exercise powers under

the 1972 Act. The 1972 Act remained under suspension

during 25.3.1975 to 30.3.1976 and it is during this

phase, the 18.12.1975 compromise was re-recorded. As

Page 17 of 39 such the compromise and the DC’s 24.12.1975 order were

at a time when the suspended Act was operating.

Therefore, it is argued that the DC/Collector lacked

jurisdiction and authority to entertain the appeal. In

such a situation, the consent of the parties to the lis

can have no implication as the Authority lacked

jurisdiction by virtue of suspension of the 1972 Act.

In support of his contention Mr. Ahmadi, learned Senior

Counsel relied on Ajudh Raj v. Moti4,

“5. The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it 4 (1991) 3 SCC 136

Page 18 of 39 aside; and such a suit will be covered by Article 65. In the present case the controversial facts have been decided in favour of the plaintiff-appellant and the findings were not challenged before the High Court. The position, thus, is that the plaintiff was the owner in cultivating possession of the land and the defendant Moti was merely a labourer without any right of a tenant or a sub-tenant. The question is as to whether in this background it is necessary to set aside the order passed in favour of the respondent under Section 27(4) of the Act before the suit can be decreed or whether the plaintiff can get a decree ignoring the said order as void, in which case the suit undoubtedly will be governed by Article 65.”

The learned senior counsel further relied on

Mohammad Ansari v. Union of India & Ors5.,

“35. At this stage, it is necessary to recapitulate that during the pendency of the matter before the High Court, the Central Administrative Tribunal had passed the final order on 5-11-2012 in favour of the appellant. Be that as it may, the Tribunal does not have the jurisdiction to deal with an issue of upgradation or the nature of lis raised by the appellant before it. In the absence of lack of inherent jurisdiction to deal with the issue, the said judgment is a nullity. It has no existence in law. It is well settled in law that the judgment passed is a nullity if it is passed by a court having no inherent jurisdiction. The decree to be called a 5 (2017) 3 SCC 740

Page 19 of 39 nullity is to be understood in the sense that it is ultra vires the powers of the court passing the decree and not merely voidable decree. (See Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas [Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas, (1993) 2 SCC 458].”

16.6 The appellants next contend that the subject

matter of the compromise is Orchard land which, under

Section 2(4) of the 1972 Act, stood excluded from the

definition of land and therefore neither the tenant

Jalil Khan nor the plaintiff, could claim any title

over such Orchard land. It is therefore argued that

the 1972 Act did not allow for any private agreements

in furtherance of which, any compromise could be

entered.

16.7 On the finding against the defendants that they

had not challenged the compromise and therefore the

rights over the land for the plaintiff stood

crystalized is contended to be an untenable position of

law. The decree according to the appellants is a

legal nullity as the authority lacked jurisdiction to

Page 20 of 39 pass any such order. It is therefore argued that the

same can be set aside even in collateral proceedings

and the compromise would not obliterate any lawful

right of the landowner Sucha Singh, over his own land.

17.1 Per contra, Mr. S.N. Bhat, the learned Senior

Counsel for the respondent (plaintiff) would firstly

submit that since the appeal arises out of the

concurrent findings of three courts which decreed the

suit declaring title and possession in favour of the

plaintiff, this Court in exercising power under Article

136, should not upset those findings. Furthermore, in

the facts of the present case, this Court should not

interfere. It is submitted that the respondent as

adopted son would get only 11 Kanals & 15 Marlas. (The

appellant has a case that respondent had other

properties). This in turn is disputed by the

respondent.

17.2 According to the respondent, the right over the

land in question is declared on the basis of the

18.12.1975 compromise and the DC’s endorsement and

Page 21 of 39 since Sucha Singh the landowner had appended his thumb

impression on the compromise, the ownership of the

plaintiff is acknowledged. Thus, plaintiff’s title was

rightly protected by the courts. According to Mr.

Bhat, the parties to the transaction clearly understood

the purport of the compromise and as such confusion

must not be created on the issue by adverting to the

definition of “owner” under the 1972 Act. It is

further submitted that the Sucha Singh by making his

endorsement on the compromise obviously intended to

give and recognize the right of the plaintiff over the

subject land and his act cannot be seen through the

definition of “owner” under the 1972 Act.

17.3 On the issue of DC’s order dated 24.12.1975 being

non est and void for having been passed during the

operation of Suspension Act, 1975, the respondent

argues that such a contention was raised for the first

time in the LPA before the Division Bench of the High

Court and since that issue was not raised by the

defendants either before the Trial Court or the First

Page 22 of 39 Appellate Court, the Division Bench rightly held that

the appellants are disentitled to raise such

contention. It is further pointed out that the

Suspension Act, 1975 did not suspend all proceedings

under the 1972 Act in its entirety and certain

proceedings were kept alive under Section 4 of the

Suspension Act, 1975. Therefore, unless the exact

nature of the proceedings initiated before the Circle

Officer is brought forth, it cannot be said that

Suspended Act, 1975 applies to the compromise and the

proceedings before the Deputy Commissioner. Since great

prejudice was caused to the respondent-plaintiff by

permitting the appellants to raise such contention for

the first time in the LPA proceedings, Mr. Bhat,

learned senior counsel places reliance on Sitabai &

Anr. v. Ramachandra6 and Om Prakash & Ors. v. R.K.

Kalra7.

17.4 The plea of estoppel against the appellants is

also pressed home by the senior counsel by projecting

6 AIR 1970 343 7 (1988) 4 SCC 705

Page 23 of 39 that the admission of ownership of the respondent-

plaintiff was made by Sucha Singh in the compromise and

the same being accepted by the DC, the appellants as

the legal heirs of Sucha Singh are estopped from

raising such contention.

17.5 According to Mr. Bhat, the appellants are wrong in

saying that the compromise and the DC’s order would

require registration. The counsel further argues that

the transaction is essentially within the family of

Sucha Singh and the respondent herein being the adopted

son of Sucha Singh, the transaction should be construed

as a family transaction, and it would be an exception

to the principles governing transaction amongst

strangers. Therefore, placing reliance on Kale and

others vs. Deputy Director of Consolidation and others8,

Ram Charan Das vs. Girija Nandini Devi and others9,

Maturi Pullaiah and another vs. Maturi Narasimham and

others10, Mr. Bhat argues that the principles of

estoppel and equity will apply against the appellant on

8 (1976) 3 SCC 119 9 AIR 1966 SC 323 10 AIR 1966 SC 1836

Page 24 of 39 their insistence of formalities like registration for

what is nothing but a family arrangement. In order to

explain the principles of estoppel in transactions

involving families, Mr. Bhat relies on K. C. Kappor vs.

Smt. Radhika Devi (dead) by Lrs. and others11, Mehaboob

Sahab vs. Syed Ismail and others12, Bhagwan Krishan

Gupta (d) vs. Prabha Gupta and others13, Ganeshi (Dead)

Through Lrs. and others vs. Ashok and Another14 and

Ajambi (Dead) by legal representative vs. Roshanbi and

others15.

Findings

A. Whether the compromise dated 18.12.1975 confers

title?

18. In order to adjudicate the above issue, we need to

look at the compromise in its intent and functioning.

The compromise between the Plaintiff and Abdul Jalil

Khan (tenant) was recorded in a proceeding for

11 (1981) 4 SCC 487 12 (1995) 3 SCC 693 13 (2009) 11 SCC 33 14 (2011) 15 SCC 417 15 (2017) 11 SCC 544

Page 25 of 39 correction of revenue records under the 1972 Act and

the Rules. There, the Plaintiff was admitted to be the

owner and in possession of land which he personally

cultivated. Sucha Singh with his thumb impression

endorsed the compromise deed. On this the defendants

have contended that the said statement has to be read

in the context in which it was made and how the parties

to the transaction understood the same. The plaintiff

says that his adoptive father Sucha Singh intended to

confer title on the Plaintiff and Sucha Singh would not

have looked into the definition of “owner” under the

1972 Act, before making the endorsement on the

compromise. On this, it cannot be ignored that the

parties effectuated the transaction in a proceeding

under the 1972 Act. Thus, the compromise exists within

the four corners of the 1972 Act, and must therefore be

read by applying the statutory provisions.

19. Proceeding further, the definitions of ‘owner’ and

‘personal cultivation’ under Ss. 2(6) and (7)

respectively of the 1972 Act are expansive. The

Page 26 of 39 definition of owner is an inclusive one. It includes

not only the legal owner/proprietor, but also person

claiming through the legal owner. Specifically, the

‘adopted sons’ of the owner. Hence, the purpose of the

compromise decree in the correction proceedings under

Chapter III of the Rules pertain only to revenue

entries, and the possession of land in capacity of a

personal cultivator. This could hardly confer any

lawful title on the plaintiff over Sucha Singh’s land.

20. The power under the 1973 Rules confers limited

power to the circle officer’s and it is confined to

verifying, amending, and authenticating revenue records

as they existed on the cutoff date i.e., 1st September,

1971. Thus, it is clear that a mere affirmation in the

context of revenue records and personal cultivation

rights cannot be interpreted as an intention of Sucha

Singh to confer title upon the Plaintiff. With his

endorsement on the compromise, Sucha Singh perhaps

intended to give the right of personal cultivation but

Page 27 of 39 the same does not in any manner suggest that Sucha

Singh had intended to confer title on the plaintiff.

21. It is also important to note that Plaintiff in his

own testimony (led before Trial Court, and recorded in

the Trial Court judgment) had stated that Sucha Singh

prepared “orchards”. Albeit, by using the salary of

Plaintiff. The land is therefore of the orchard

category. In this situation, the land which is the

subject matter of the Compromise being an Orchard stood

excluded from the definition of land under S. 2(4) of

the 1972 Act. As such, the title for such category of

land could not vest with the Plaintiff. This

determination of fact is essential to adjudicate the

title and the issue was definitely raised in the LPA

proceeding before the High Court, apart from being

raised in the lower court also. In such a situation

this Court is required to keep the ‘orchard’ aspect in

mind and also address the implication of the same on

the contesting parties. The upshot of the above

Page 28 of 39 persuade us to hold that the compromise (18.12.1975)

does not convey any lawful title on the Plaintiff.

B. Did the compromise require registration?

22. It is contended by the defendants that the

compromise did not comply with Section 17 of the

Registration Act, 1977 which mandates compulsory

registration, and without a registered document, no

title or claim or possession can fructify. On the other

hand, Plaintiff has argued that the transaction is

essentially within the family of Sucha Singh since

plaintiff is the adopted son of Sucha Singh. The

transaction of the present nature belongs to a

different class, and thus, the normal principles

governing transaction among strangers, do not apply to

this class of transactions.

23. We are however unable to see the compromise as a

kind of ‘family arrangement’. The compromise was not

amongst family members but between the plaintiff and

the tenant – Jalil Khan (not a family member). The

statement of Sucha Singh “I accept the compromise”, is

Page 29 of 39 only with regard to the internal arrangement regarding

the tenancy of Jalil Khan, and this will not make it a

family arrangement. Moreover, the plea that compromise

is a “Family Arrangement” is raised for the first time

before this Court. The Plaintiff significantly had

waived his claim to other assets left by Sucha Singh

(on the basis that the Plaintiff is his adopted son),

before the High Court. He cannot therefore be permitted

to raise such a contention for the first time before

this Court. Even otherwise, Jalil Khan was not a family

member. Thus, he could not have been a party to a so

called “family arrangement”. Besides, none of the other

family members were parties to the said compromise

either. Therefore, the documents in question would

require registration and it cannot be treated as a

family arrangement.

24. It is pertinent to note that the ownership claim

for the plaintiff is founded only on the compromise and

the respondent is not claiming any antecedent title.

The issue whether the compromise decree between parties

Page 30 of 39 to a suit proceeding, could vest or transfer title to

one of them, was decided in Bhoop Singh v. Ram Singh

Major [supra], where the requirement of registration of

such compromise order which create new rights, title,

or interest, was upheld in the following manner: -

“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 the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.

Page 31 of 39 (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.”

25. Further, in K. Raghundandan & Ors. vs. Ali Hussain

Sabir & Ors. [supra], while referring to Bhoop Singh

[supra], the Court held that consent terms creating

rights/title or interest for the first time, as

distinguished from recognition of a right, would

require registration if the value of property is above

Rs. 100. This was affirmed by a three Judges bench in

Phool Patti vs. Ram Singh [supra]. Lastly, in Ripudaman

Singh vs. Tikka Maheshwar Chand16, this Court held that

where there is no pre-existing right, but right has

been created by the compromise alone, such compromise

creating new right, title or interest in immovable

property of value of Rs. 100 or above, is compulsorily

registrable.

16 (2021) 7 SCC 446

Page 32 of 39

26. In the present case, the Appeal filed by the tenant

– Jalil Khan arose from the change of the entry in the

records during the process of verification under the

1972 Act. It was in this Appeal that the compromise was

recorded and endorsed by the DC’s Order, recognizing

the possession of the Plaintiff for the very first

time, as was also admitted by plaintiff in paragraph 6

of the Suit. In circumstances of this kind, we are

quite certain that the compromise was required to be

registered, under Section 49 of the Registration Act,

1977 and also under Section 138 of the J&K Transfer of

Property Act. Without such registration no title can

fructify for the plaintiff from the documents in

question.

27. Furthermore, the compromise and the DC’s consequent

Order, was passed in a revenue proceeding and this was

definitely not a part of a Court proceeding. That being

the case, the compromise did not fall under the

exception category under Section 17(2)(vi) of

Registration Act, 1977 (as applicable to then State of

Page 33 of 39 J&K). The above makes it abundantly clear that the

compromise in order to have legal effect needed

registration under the Registration Act, 1977.

28. Significantly, the DC’s 24.12.1975 order based on

the Compromise, also dealt with 6 Kanals land forming

part of Survey No. 1829 & 1838 which went to the

ownership of the tenant - Jalil Khan. The subject

compromise or the DC’s order was not restricted only to

11 Kanals and 15 Marlas as claimed by the Plaintiff.

These circumstances would imply that the compromise

required registration for it to be of any legal effect.

Since title is claimed, and the plaintiff founded his

entire case on the compromise, it would necessarily

require registration. Accordingly, question B is

answered in affirmative.

29. The defendants have also unsuccessfully argued

before the High Court that the jurisdiction of the

Deputy Commissioner to exercise powers under the J&K

Agrarian Reforms Act, 1972 stood suspended on the date

of passing the Compromise Decree. Such a question of

Page 34 of 39 law has a material bearing on this litigation and the

same needs to be considered. The 1972 Act as noted

earlier, was suspended during 25.03.1975 to 30.03.1976

and during this period the Compromise was recorded on

18.12.1975 and the 24.12.1975 Order was passed by the

DC. The power exercised for these orders are traceable

to the suspended provisions of the Act. Of course, the

J&K Agrarian Reforms (Suspension of Operations) Act,

1975 did have a proviso which created exceptions for

certain sections of the 1972 Act. The relevant part of

the proviso reads thus;

“4. Certain provisions of Act No. XXCI not suspended for the time being- (1) The provisions of Sections 15, 25, 26, 27, 28, and 51 and the provisions of Chapter V of the principal Act in so far as they relate to these sections and any rules, notifications, orders and instructions issued thereunder including any proceedings instituted or actions taken under the said provisions and pending on the date of commencement of this Act, shall be continued and enforced as heretofore:…”

30. The above makes it clear that this case is outside

the ambit of any of the exempted sections such as

Page 35 of 39 Section 15 (Prohibition on transfer of land), 25 (levy

of annual tax), 27 (collection of tax), 28

(Determination of ques-levy of tax related), 51 (repeal

& savings) of the 1972 Act. Only such provisions of

Chapter V which were relatable to the aforesaid

provisions were relevant, and not all sections were

within the ambit of exception. Section 31 of the 1972

Act which provided for Appeals and Revisions, was not

protected by Section 4 of the Suspension Act, 1975.

Thus, the DC, in our mind lacked inherent jurisdiction

to either entertain the appeal or endorse the

compromise during the suspended phase. In cases where

the authority lacked jurisdiction under a special Act

and yet exercises powers, without authority of law, any

order or decree so passed through such unlawful

exercise of power, will be a legal nullity. The

deficiency of jurisdiction of the authority cannot be

cured by the consent of the parties. The challenge to

such an incompetent order could be set up wherever it

is sought to be enforced or relied upon, even in

Page 36 of 39 execution or in collateral proceedings17. Accordingly

answering in favour of the defendants, the DC’s order

in our opinion can have no legal effect as the same was

passed during the operation of Suspension Act, 1975. We

have found that the compromise being unregistered

cannot confer title on the respondent.

31. The final issue for our consideration is whether

estoppel principle would apply against the defendants

in their challenge to DCs order. Equity as we know

follows the law, and whenever there is a conflict

between law and equity, it is the law which must

prevail. Here the Latin maxim “dura lex sed lex”,

which means “the law is hard, but it is the law” would

apply. Equity can only supplement the law, but it

cannot supplant or override it18, and this would have a

bearing against the respondent.

32. The records in the case show that Sucha Singh,

during his life time, had cancelled the two Wills in

favour of the plaintiff. This indicates that Sucha

17 (1991) 3 SCC 136, Para. 5 | (2017) 3 SCC 740, Para. 35 18 (2007) 2 SCC 230, Para. 29

Page 37 of 39 Singh was not interested to give any part of his

property to the plaintiff. Even otherwise, the suit

property is self-acquired property of Sucha Singh, and

a donee cannot claim equity in respect of the disposal

of self-acquired properties, by a donor. Equity is all

about balancing the competing interests and due

weightage must be given to the fact that the appellants

have been in possession and was nurturing their

father’s land for over four decades and the estoppel

principle propounded against them by the respondent

must give way to the law set out by the statute19.

33. Notwithstanding the concurrent finding against

them, in a case like this, where the law leans in

appellant’s favour, the Court has to exercise

corrective jurisdiction as the circumstances justify.

As such, taking a cue from Haryana State Industrial

Development Corporation vs. Cork Manufacturing Co20.,

the exercise of extraordinary jurisdiction under

Article 136 is found to be merited in this matter.

19 (2021) 3 SCC 401 20 (2007) 8 SCC 120 Page 38 of 39

34. Proceeding accordingly, the decree in favour of

the respondent (Plaintiff) in respect of the land

measuring 11 Kanals and 15 Marlas falling within the

survey nos.1829 and 1838 situated at Ranbirpora,

Anantnag, are set aside. The Appeal stands allowed by

leaving the parties to bear their own cost.

………………………………………………………J. [K.M. JOSEPH]

………………………………………………………J. [HRISHIKESH ROY] NEW DELHI AUGUST 2, 2022

Page 39 of 39