2016 (2) TMI 1380 - HC - Indian Laws

Maintainability of suit for declaration and permanent injunction - suit for declaration of possession of land - time limitation - compromise decree required compulsory registration or not - HELD THAT - In the Instant case, the plaintiff has challenged the resultant decree based on compromise on the ground that she was ailing at the relevant time and was not in a position to give free will for execution of said compromise which ultimately resulted into decree. The ailment with which the plaintiff was suffering at the relevant time was stated to be Epilepsy - In order to substantiate the plea of ailment, the plaintiff got examined Dr. Surjit Singh PW-4, who stated that Jagtar Kaur was suffering from Epilepsy from the years 1976 to 1982 and she got treatment from him upto the year 1984. The deposition of Doctor was not in the context of proving that she was confined on account of Epilepsy and was not in a position to re-capitulate the facts and there was a loss of memory or she was totally incapacitated on account of such ailment in terms of faculty of mind and physical movements. In view of bar created under Order 23 Rule 3-A CPC, no suit shall lie to set aside the decree on the ground that compromise on which the suit was based was not lawful. At the most the plaintiff could have filed application in the said suit as all the issues are required to be decided in the same suit. Since particulars of fraud have not been pleaded and proved in the case, therefore, the suit was not maintainable in view of bar created under Order 23 Rule 3-A CPC - After the execution of decree the plaintiff cannot presumed to be co-sharer since the decree was based on compromise on account of family settlement. Plaintiff is Bua of the defendants. She was married long back and was laying in her matrimonial house. The decree based on compromise pointed out semblance of interest and was not required to be compulsorily registered as the decree recognized pre-existing right of the defendants and it cannot be said that right was created in favour of defendants for the first time. Both the questions of law are to be answered in favour of the appellants to hold that subsequent suit is barred in terms of Order 23 Rule 3-A CPC and subsequent decree dated 06.10.1979 was not required to be compulsorily registered. Since the civil Court decree dated 06.10.1979 was not fraudulent, therefore, filing of suit on 26.08.1983 was patently barred by limitation. Taking into consideration the facts and circumstances of the case, this Court cannot subscribe the view taken by the lower Appellate Court inasmuch as that the decree based on compromise was legally required to be questioned in the same suit and the subsequent suit is barred in terms of Order 23 Rule 3-A CPC. The plaintiff cannot be held to be co-sharer in the land and suit based on title is within limitation. Appeal allowed.

Summary

Issues:
1. Validity of judgment and decree dated 21.04.1987 setting aside previous judgments.
2. Maintainability of the suit for declaration and permanent injunction.
3. Compulsory registration requirement for civil Court decree dated 06.10.1979.
4. Limitation period for filing suit post the civil Court decree.

Issue 1: Validity of judgment and decree dated 21.04.1987 setting aside previous judgments
The case involved a second appeal against judgments dated 21.04.1987, 26.04.1985, and 06.10.1979. The plaintiff filed a suit for declaration of ownership of a share of land, challenging a civil Court decree dated 06.10.1979. The lower Appellate Court set aside the previous judgments, leading to the present appeal. The key contention was whether the subsequent suit was maintainable under Order 23 Rule 3-A CPC.

Issue 2: Maintainability of the suit for declaration and permanent injunction
The plaintiff alleged that the civil Court decree was obtained through misrepresentation and fraud, claiming incapacity due to epilepsy at the time of compromise. However, the court found the plaintiff's ailment did not incapacitate her from understanding and participating in the compromise. The defendants argued that the subsequent suit was barred under Order 23 Rule 3-A CPC as no fraud was proven, and the compromise decree was legally binding.

Issue 3: Compulsory registration requirement for civil Court decree dated 06.10.1979
The court examined whether the civil Court decree required compulsory registration, concluding that as it recognized pre-existing rights based on a compromise, it did not create new rights necessitating registration. The decree was implemented based on the compromise, and the plaintiff could not claim co-ownership post the compromise decree.

Issue 4: Limitation period for filing suit post the civil Court decree
The court determined that the subsequent suit filed in 1983 was barred by limitation since the alleged incapacity due to epilepsy was not proven to be continuous for the required period. The court emphasized the lack of evidence supporting the plaintiff's claim of continuous ailment and highlighted the execution of legal documents and participation in court proceedings by the plaintiff during the relevant period.

In conclusion, the High Court held that the subsequent suit was not maintainable under Order 23 Rule 3-A CPC as fraud was not proven, and the compromise decree was legally binding. The court reinstated the judgment and decree dated 26.04.1985, setting aside the judgment dated 21.04.1987. The plaintiff's claim of ownership post the compromise decree was rejected, and the suit filed in 1983 was deemed time-barred.