Sudhir Kumar Katriar, J.
1. The defendants first set (hereinafter referred to as 'the defendants') are the appellants against a judgment of affirmance. This appeal is directed against the judgment and decree dated 6-3-2003, passed by learned Vth Additional District Judge, Patna, in title Appeal No. 45 of 1999/ 5 of 2001 (Dilip Gupta and Anr. v. Debashish Palit and Ors.), whereby he has dismissed the appeal preferred by the defendants (the appellants herein), and has upheld the judgment and decree dated 29-5-1999, passed by the learned Subordinate Judge-VIII, Patna, in title Suit No. 61 of 1986 (Debashish Palit and Ors. v. Dilip Gupta and Anr). The learned trial Court had decreed the suit and ordered for ejectment of the defendants from the suit property, and for khas possession of the plaintiffs. We shall go by the description of the parties occurring in the plaint.
2. First the background of the present suit. Late T.C. Palit, the ancestor of the plaintiffs (respondent first set herein), had executed a temporary lease deed in favour of late S.N. Gupta, father of the defendants, on 25-8-1946 (Ext. 4), with respect to 15 kathas and 8 dhurs of land in the township of Patna for a period of 29 years at a monthly rental of Rs. 205/- with the right of renewal to the lessee for a further period of ten years on the terms and conditions stated in the lease deed. S.N. Gupta was put in possession of the lease-hold land on 1-1-1947. During the currency of the lease, the lessor had to file various money suits, namely, Money Suit Nos. 260 of 1953, No. 228/156 of 1954, No. 195 of 1951/10 of 1968, and No. 249 of 1963, for realisation of arrears of rent all of which were decreed. Photocopies of the judgments are marked Ext. 6/A, 6/B, 6/C and 6/D respectively. The lessor once again determined the lease on 23-12-1966 on account of default in payment of rent and instituted Title Suit No. 70/1967 for eviction of the lessee from the lease hold land. T.C. Palit died during the pendency of this suit and was substituted by his heirs. The period of 29 years contemplated by the lease deed (Ext. 4) ended on 31-12-1975, and the lease at the option of the lessee stood renewed for a further period of ten years. A joint compromise petition (Ext. O) was filed in the said Title Suit No. 70 of 1967/6 of 1973 on 18-2-1980, which was disposed of by judgment and decree dated 13-3-1980 (Ext. P), and the compromise petition (Ext. O), formed part of the decree. The terms of compromise in substance were that the lessee would surrender to the lessor 12 kathas and 5 dhurs of the lease-hold land with the building thereupon in occupation of old tenants, and the right, title and interest with respect to the balance 3 kathas and 3 dhurs along with the constructions/shops thereupon was alienated absolutely in favour of the lessee. Another term of the compromise petition was that the lessor agreed to forego the entire arrears of rent upto February 1980. The right, title and interest in 3 kathas and 5 dhurs of land along with buildings constructed thereon was thus for the first time created in favour of the defendants. Another term of the compromise was that the cost of registration was to be borne by the lessee. The lessor had thereafter to institute Title suit No. 175 of 1980/6 of 1982 for evicting the lessee from a portion of the land retained by the lessor. The lessor ultimately got possession of the same. The lessee did not get the compromise decree registered.
3. In the background of the aforesaid facts and circumstances, the lessor instituted the present Title Suit No. 61 of 1986, seeking the relief of eviction of the defendants (the lessees) from the aforesaid 3 kathas and 3 dhurs, and to obtain khas possession primarily on the ground that the aforesaid compromise decree (Ext. P) needed compulsory registration in terms of Section 17(2)(vi) of the Registration Act, 1908 (hereinafter to be referred to as 'the Act'). The learned trial Court on contest decreed the suit, ordered for eviction of the defendants, and restoration of possession of the suit property to the plaintiffs.
4. The defendants appealed, which has been dismissed by the impugned judgment and decree and the findings of the learned trial Court have been affirmed. The learned Court of appeal below has held that the compromise decree dated 13-3-1980 (Ext. P) for the first time created right, title and interest with respect to 3 kathas and 3 dhurs in favour of the defendants and, therefore, needed compulsory registration in terms of Section 17(2)(vi) of the Act. In view of nonregistration of the compromise decree, title with respect to the suit property did not pass to the defendants as a result of which the lease-deed dated 25-8-1946 (Ext. 4) revived which had expired by efflux of time on 31-12-1985. He has also found that the defendants did not take steps for registration of the compromise decree. He has also held that the plaint is not hit by the principles of estoppel. The defendants are liable to ejectment, and the plaintiffs are entitled to recovery of possession of the suit property with the structures/constructions thereupon.
5. While assailing the validity of the impugned judgment, learned Counsel for the defendants submitted that in view of the provisions of Section 17(2)(vi) of the Act, the terms of the compromise petition (Ext.O), and the compromise decree (Ext. P), do not need compulsory registration. He has relied on the following reported judgments :--
(i) : [1950]1SCR833 (Mangan Lal Deoshi v. Mohammad Moinul Huque
(ii) : [1996]2SCR261 (S. Noordeen v. V.S. Thiru Venkita Reddiar).
(iii) : AIR1974Mad199 (C. Muthuvel Pillai v. Hazarath Syed Shah Mian Sakkab Sahib Kadhiri Thaikal represented by Trustee Syed Ismath Batcha Saheb).
(iv) (Gurdev Kaur v. Mehar Singh).
(v) : AIR1953Pat340 (Rautmal Baid Oswal v. Rameshwar Lal Somani).
(vi) : AIR1960Pat179 (Ramdas Sah v. Jagarnath Prasad).
5.1 He next submits that the suit is hit by the principles of estoppel. Having taken the benefit under the compromise decree, the plaintiff cannot resile from the same. He also submitted that the suit is barred by the provisions of Order 23, Rules 3 and 3A of the Code of Civil Procedure which provides that the issues in question should have been raised in the previous suit itself. He relied on the following reported judgments :
(i) : [1956]1SCR72 . (Sailendra Narayan Bhanja Deo v. State of Orissa).
(ii) : [1976]3SCR202 (Kale v. Deputy Director of Consolidation).
(iii) (Gopal Lal v. Babu Lal).
(iv) 2003 (4) Pat LJR 266 (paras 11, 12, 14 to 16) (Smt. Phul Kumari Tripathi v. Smt. Bina Devi @ Saraswati Devi).
(v) 2005 (1) Pat LJR 1 Jaimangal Kumar v. Dinesh Yadav.
6. Learned Counsel for the plaintiffs supported the Impugned judgment and submitted that the compromise decree for the first time created right, title and interest in favour of the defendants and, therefore, needed compulsory registration in terms of Section 17(2)(vi) of the Act. He relied on the following reported judgments:
(i) : AIR1996SC196 (Bhoop Singh v. Ram Singh Major).
(ii) : AIR1987Pat102 (F. B.) paragraphs 11 and 12 Ashutosh Saha v. Mohammad Yusuf Ali).
(iii) 1995 (1) Pat LJR 564 paragraphs 8 and 12 (Jahardan Choudhary v. Hridya Narain Choudhary).
6.1 He also submitted that the conduct of the defendants shows that he treated the compromise decree to avoid payment of Court fee.
6.2 He next submitted that the principles of estoppel can never operate against the statute. He relied 6n the following reported judgments :
(i) : [1976]3SCR202 (Kale v. Deputy Director of Consolidation and Ors.).
(ii) : AIR2004SC3502 (Pune Municipal Corporation v. Promoters & Builders Association).
(iii) : AIR1961Pat79 (Brahmanath Singh v. Chandrakali Kuer).
(iv) 2003 (4) Pat LJR 266 (Smt. Phul Kumari Tripathi v. Smt. Bina Devi @ Saraswati Devi).
6.3 He also submitted that the provisions of Order 23, Rule 3A are not attracted in the present case. No prejudice has occurred to the defendants first set for not agitating the issue in the earlier suit. He relied on the judgment reported in 2004(1) Pat LJR 332 paragraph 9 (Dina Nath Prasad v. State of Bihar). He also submitted that the issue, cannot be permitted to be raised for the first time in second appeal. The suit is really covered by the provisions of Order 14, Rule 2(b) of the Code of Civil Procedure. He lastly submitted that the issues are concluded by concurrent findings of facts which bind this Court in second appellate jurisdiction. He relied on the judgment reported in : AIR2005Pat51 (Lalmuni Devi v. Jagdish Tiwari).
7. I would first of all deal with the question whether or not the compromise decree in the present case needs compulsory registration. Section 17(1) of the Act enumerates the various kinds of documents which need compulsory registration. The relevant portion of Section 17(1) reads as follows :--
'17. Documents of which registration is compulsory.-- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely :--
…
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;.
Sub-section (2) of Section 17 carves cut the exceptions to Section 17(1), and the relevant portion reads as follows :--
(2) Nothing in Clauses (b) and (c) of Sub-section (1) applies to
(v) any document not itself, creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding or
8. The (Privy Council in its judgment in Rani Hemant Kumar Devi v. Midnapur Zamindari Co. Ltd. ((1919) 469 I. A. 240 : AIR 1919 P. C. 79) held that the decree in question was not required to be registered because the compromise was accepted to be 'an agreement to lease', and also covered properties not litigated which was not the subject matter of the Suit or the proceeding. Sub-section VI of Section 17 until then read, '(vi) Any decree or order of a Court and any award'. The judgment was followed by amendment of Section 17(2)(vi) and the words 'and any award' were, by the Transfer of Property (Amendment) Act, 1929 (Act. No. XXI of 1929), substituted by the present words, namely, '...except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding', and the words preceding thereto, namely 'any decree or order of a Court...', remaining intact, leading to Sub-section (vi) of Section 16(2) as it stands today.
9. The question as to under what circumstances an agreement made in writing and incorporated in a decree of the Court needs compulsory registration has been thoroughly reviewed in the judgment of the Supreme Court in Bhoop Singh v. Ram Singh Major : AIR1996SC196 (supra), which is now the settler on the point and entirely governs the present case. The Supreme Court has observed that :-- (Paras 12 & 13)
'Sub-section (1) of Section 17 mandates that the instrument enumerated in Clauses (a) to (e) shall be registered compulsorily if the property to which they relate is immovable property value of which is Rs. 100/- or upwards. When the document purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest therein, whether vested or contingent, it has to be registered compulsorily. The Act does not define 'instrument', Section 2(14) of the Indian Stamp Act 1899, defines 'instrument' to include every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. Sub-section (2) of Section 17 of the Act engrafts exceptions to the instruments cover only Clauses (b) and (c) of Sub-section (1), We are concerned with Clause (vi) of Sub-section (2). Clause (vi) relates to any decree or order of a Court, except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Clause (v) is relevant which in contrast reads thus :
'any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another instrument which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest,'. The Explanation amplifies that a contract for the sale of immovable property containing a recital or payment of any earnest money or of the whole or any part of the purchase price shall not be deemed to be required or ever to have required registration.'
The Supreme Court further held as follows :--
'In other words, the court must enquire whether a document has recorded unqualified and unconditional words of present demise of right, title and interest in the property and included the essential terms of the same, if the document, including a compromise memo, extinguishes the rights of one and seeks to confer right, title or interest in praesenti in favour of the other, relating to immovable property of the value of R. 100/-and upwards, the document or record or compromise memo shall be compulsorily registered.'
The Supreme Court considered its, judgment in Tek Bahadur v. Debi Singh, : AIR1966SC292 and observed as follows :--
'The Constitution Bench of the Supreme Court considered the validity of the family arrangement and the question was whether it requires to be compulsorily registered under Section 17. While upholding oral family arrangement, the Supreme Court held that registration would be necessary only if the terms of the family arrangements are reduced into writing. A distinction should be made between the document containing the terms and recital of family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the Court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any right in immovable properties and, therefore, does not fall within the mischief of Section 17(2) of the Act. It was held that a memorandum of family arrangement made earlier which was filed in the Court for its information was held not compulsorily registerable and, therefore, it can be used in evidence for collateral purpose, namely for the proof of family arrangement which was final and binds the parties. The same view was reiterated in Maturi Pullaiah v. Maturi Narasimham, AIR 1966 SC 1836, wherein it was held that the family arrangement will need registration only if it creates any interest in immovable property in present time in favour of the parties mentioned therein. In case no such interest is created, the document will be valid despite it being non-registered and will not be hit by Section 17 of the Act.'
The Supreme Court also considered its judgment in Ratan Lal Sharma v. Purshottam Harit, : [1974]3SCR109 and observed as follows :--
'... that the award had expressly made an exclusive allotment of partnership assets, including the factory and liabilities to the appellant, and made him absolutely entitled to the same, thereby purporting to create rights in immovable property worth above Rs. 100/- in favour of the appellant. It was, therefore, held that it required registration under Section 17 of the Act. It was also pointed that it is equally settled law that the share of a partner in the assets of the partnership which has immovable property and movable property and that the assignment of the share does not require registration under Section 17. Take the familiar cases of a decree in suit for specific performance of a contract. Though a contract of sale is not compulsorily registrable as it does not create title or right in immovable property; but on a decree for specific performance made by the Court, the document executed in furtherance thereof requires registration though it has the imprint of the decree of the Court.'
9.1. After a thorough discussion of the subject, the Supreme Court concluded as follows :--
'We have to view the reach of Clause (vi), which is an exception to Sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.
It would, therefore, be the duty of the Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court, one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registerable.'
'The legal position qua Clause (vi) of Section 17(2) 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.
(5) If the property dealt with by the decree be not the 'subject matter of the suit or proceedings', 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.'
10. Applying the aforesaid principles to the present case, it is obvious that the defendants were in possession of the suit property since 1946 as a lessee which was to finally expire on 31-12-1985. As a result of the compromise decree, the lessor (the plaintiffs herein) alienated absolutely the right, title and interest in the 3 kathas 3 dhurs of the demised land along with the buildings constructed thereupon for the first time in favour of the lessees (the defendants). This is obviously covered by the second proposition enumerated in paragraph 18 of the judgment in Bhoop Singh v. Ram Singh Major : AIR1996SC196 (supra). The lessees (the defendants) had, prior to the compromise decree, the right to enjoy the property as a lessee for a maximum period of 39 years which was to end on 31-12-1985, by the compromise decree, right, title and interest with respect to 3 kathas and 3 dhurs was absolutely alienated, and created for the first time, in favour of the lessees (the defendants). The compromise decree (Ext. P) obviously, therefore, needed compulsory registration.
11. It is further manifest from the discussion in the impugned judgment that the compromise petition (Ext.O) incorporated in the compromise decree (Ext.P), provided that the cost of registration of this compromise decree if and when deemed necessary will be borne by the defendants and the parties shall sign the papers for securing an early registration.
12. It appears to me that the lessees (the defendants) did not take steps for registration of the compromise decree and purposely avoided the same to save, the cost of registration and stamp duty. In other words, I am convinced that the lessees (the defendants) have treated, or misused the compromise decree, as a device to obviate payment of stamp duty and frustrated the law relating to registration. It is equally for this reason that the compromise decree needed compulsory registration. The case is, therefore, equally covered by proposition No. 1 of paragraph 18 of the judgment in Bhoop Singh : AIR1996SC196 (supra).
13. I would now like to deal with the judgments relied on by the learned Counsel for the parties on this point. Learned Counsel for the defendants (the appellants herein) has needlessly relied on a number of judgments most of which have been considered by the Supreme Court in Bhoop Singh : : AIR1996SC196 (supra). The judgments of the Supreme Court in Mangan Lal Deoshi v. Mohammad Moinul Huque : : [1950]1SCR833 (supra), and C. Muthuvel Pillai v. Hazarath Syed Shah Mian Sakkab Sahib Kadhiri Thaikal : AIR1974Mad199 (supra), have been considered and held not relevant to decide the issue in hand the judgment of the Punjab and Haryana High Court in Gurdev Kaur v. Mehar Singh (supra) has also been considered and held that it does not cover the whole ground.
14. The facts of a Division Bench judgment of this Court in Rautmal Baid Oswal v. Rameshwar Lal Somani : AIR1953Pat340 (supra), relied on by the learned Counsel for the defendants, are identical to those in the case of : [1974]3SCR109 Ratan Lal Sharma v. Purshottam Harit, and the latter has been relied on by the Supreme Court in paragraph 15 in Bhoop Singh : AIR1996SC196 (supra).
15. I must now deal with the judgment of the Supreme Court in S. Noordeen v. V.S. Thiru Venkita Reddiar : [1996]2SCR261 (supra), relied on by the learned Counsel for the defendants, rendered soon after Bhoop Singh : AIR1996SC196 (supra) and by the same Bench. The appellant S. Noordeen, plaintiff in O. S. NO. 38/60 on the file of the Court of the Sub-ordinate Judge, Quilon, filed a suit against D.J. Gonzago for recovery of the money claim. On March 28, 1961, the money decree was passed. The properties covered under items 1 to 7 of the petition were sold in execution of the decree in O. S. No. 95/53 after due attachment on January 13, 1969. The sale was confirmed on September 13, 1974. The appellant, therefore, filed E. A. No. 57/75 to declare that the sale of properties in execution of the decree in O. S. 95/53 at items 1 to 7 of the compromise decree was not valid and it does not bind him. That was upheld by the Executing Court and the District Court in CMA. Thus the respondent came to file CRP in the High Court. The High Court had held that though items 1 to 7 were not part of the schedule mentioned properties, they became subject matter of the proceedings in O. S. No. 95/53 in which compromise decree, ultimately passed on 3-4-1954, properties were under attachment from 1953, therefore, they became part of the suit properties. Consequently, they are not required to be compulsorily registered. The decree thereby is not liable to be annulled. The appellant does not get any valid right to the properties since they have already been sold. The question which arose for the consideration of the Supreme Court was whether or not it was covered by the exception in Clause (vi) of Sub-section (2) of Section 17 or the main part of Section 17 of the Act. It has been held as follows in paragraph 11 of the judgment :--
'Here we are concerned with the question whether items 1 to 7 of the properties brought to sale in execution of decree in O. S. No. 95/53 are a part of decree or order of the Court, relating to the subject matter of the suit or proceeding. We have already held that Items 1 to 7 of the properties mentioned in the separate application, which was the subject-matter of the attachment before the judgment, have become part of the decree and also the order of the Court in the proceedings under Order 38, Rule 6 of the C. P. C. therefore, the decree, though passed on compromise, formed part of the decree and order of the Court in Court proceedings. The immovable properties whose sale is impugned, are not properties other than the subject matter of the suit or proceedings. Therefore, the view of the High Court is correct in law.'
It was held that the decree did not need compulsory registration.
16. It is thus manifest that the facts of S. Noordeen v. V.S. Thiru Venkita Reddiar : [1996]2SCR261 were fundamentally different, in as much as the attachment before judgment included properties which were subject-matter of liquidation proceedings as well as outside, and the whole of which were purchased by the decree-holder in Court sale and, therefore, did not need compulsory registration. It is equally relevant to state that the Supreme Court recalled its judgment in Bhoop Singh's case : AIR1996SC196 (supra), and reiterated and reaffirmed the propositions of law enunciated therein. The facts and circumstances in s. Noordeen's case stood on a different footing and is, therefore, of no assistance to the defendants.
17. Learned Counsel for the defendants has also relied on the judgment of this Court in Ramdas Sah v. Jagarnath Prasad : AIR1960Pat179 (supra). That was a case where the plaintiff in partition suit claimed exclusive title to plot No. 2240, but sought a decree for partition with regard to other properties. In the compromise decree, there was an agreement between the parties that plot No. 2240 be exclusively allotted to the plaintiff. A Division Bench of this Court held that since the title of the plaintiff to plot No. 2240 was taken as part of the consideration for the compromise entered into between all the parties and since it was an integral part of the compromise, the title to plot No. 2240 was within the scope of the partition suit and the decree was operative even with regard to plot No. 2240 in the absence of registration. The compromise decree did not need compulsory registration. In other words, the issues for consideration was whether or not sale of the property of the compromise decree would be treated to be subject-matter of the partition suit or plot No. 2240 would be treated to be outside the partition suit. The facts were rather akin to those of S. Noordeen v. V.S. Thiru Venkita Reddiar : [1996]2SCR261 (supra). In fact, the judgment of this Court has been considered and approved by the Supreme Court in paragraph 13 of the judgment in S. Noordeen (supra). It is manifest on the face of it that the issues in Ramdas Sah v. Jagarnath Prasad : AIR1960Pat179 (supra) were different and the judgment is, therefore, nor relevant in the present context.
18. To conclude this part of the submissions of the parties, the issue is entirely covered by the judgment of the Supreme Court in Bhoop Singh : AIR1996SC196 (supra). The compromise decree needed compulsory registration. The consequences of non-registration of a document needing compulsory registration are indicated in Section 49 of the Act, which provides to the effect that it shall not affect any immovable property comprised therein, be received as evidence of any transaction effecting any such property or conferring such powers. The net result, therefore, is that the compromise decree in question (Ext. P) did not convey right, title and interest with respect to the 3 kathas and 3 dhurs to the defendants.
19. Learned Counsel for the defendants has next contended that the suit is hit by the principles of estoppel. Having taken the benefit under the compromise decree, the plaintiffs can not resile from the position and deny to the defendants the benefit given to them under the compromise decree. The plaintiffs got possession of 12 kathas and 5 dhurs along with the constructions thereupon portions of which have been subsequently alienated by them to third parties. By the compromise decree, the defendants were also deprived of the remainder period of the lease. I regret my inability to accede to the submission for the reason that estoppel cannot operate against the statute. If the law requires compulsory registration, as has been held hereinabove, then it has to be registered, failing which the compromise decree will not affect the immovable property, namely, the 3 kathas and 3 dhurs, and can not be received as evidence of the transaction affecting such property in terms of Section 49 of the Act. It has been held in Pune Municipal Corporation v. Promoters & Builders Association : AIR2004SC3502 (supra) (Para 6) that the plea of estoppel can not be urged to get over the statutory bar as there can be no estoppel against the Statute. No question of equitable estoppel arises, because a rule of equity can never be put forward to annul a positive enactment, and the admission of estoppel would nullify the statutory provision. When a Statute requires a registered document, it amounts to a statutory prohibition of the creation of such a right otherwise than by a registered instrument. Where, therefore, acquisition of title by any other means is forbidden by the Statute, neither any equitable estoppel, nor the doctrine of part-performance, applies to such a case. Paragraph 6 of the judgment is set out hereinbelow for the facility of quick reference :
'6. The DCR are framed under Section 158 of the Act. Rules framed under the provisions of a statute form part of the statute. (See General Office Commanding-in-Chief v. Dr. Subhash Chandra Yadav : (1988)IILLJ345SC , (paragraph 14). In other words, DCR have statutory force. It is also a settled position of law that there could be no 'promissory estoppel' against a statute. (A. P. Pollution Control Board II v. M.V. Nayudu, (2001)2 SCC 62 paragraph 69 : (2000 AIR SCW 4573, Para 68), Sales Tax Officer v. Shree Durga Oil Mills, : 1998(97)ELT202(SC) and Sharma Transport v. Govt. of A. P. : AIR2002SC322 . Therefore, the High Court again went wrong by invoking the principle of 'promissory estoppel' to allow the petition filed by the respondents herein.'
20. The decisions relied in Kale v. Director of Consolidation : [1976]3SCR202 (supra), and Smt. Phul Kumari Tripathi v. Smt. Bina Devi @ Saraswati Devi (2003 (4) Pat LJR 266) (supra), relied on by the defendants, were cases of family arrangement which has always stood on a fundamentally different footing and are not relevant in the present context. Those cases did not deal with the question whether or not a consent decree of a Court creating for the first time right, title or interest in favour of a party was exempt from compulsory registration in view of Section 17(2)(vi) of the Act.
21. The judgment of the Supreme Court in Shailendra Narayan Bhanja Deo v. State of Orissa : [1956]1SCR72 (supra), relied on by the learned Counsel for the defendants is also not relevant in the present context, inter, alia, for the reason that the same did not deal with the scope and ambit of Section 17(2)(vi) of the Act.
22. Learned Counsel for the defendants has stressed that the plaintiffs obtained enormous benefits under the compromise decree, and are denying to them the benefit conferred thereunder. The grievance appears to me to be wholly unjustified. Clause (3) of the lease deed itself stated that the entire land covering 15 kathas and 8 dhurs shall revert to the plaintiffs after expiry of the period of lease along with the constructions thereupon. Therefore, the fact that the area of 12 kathas and 5 dhurs reverted to the plaintiffs along with the constructions thereupon was not a benefit over and above the lease deed. Furthermore, the plaintiffs had foregone the arrears of rent till February 1980. All this was followed by Title Suit No. 75 of 1981/6 of 1982 and they ultimately regained possession of a portion of the said 12 kathas and 5 dhurs through the process of the Court after 31-12-1985.
23. We are constrained to observe that the history of the litigation presents the defendants in dim light. They appear to be thoroughly dishonest persons, who never adhered to the terms of the lease, did not pay rent leading to successive suits for recovery of rent, ultimately leading to the corn-promise decree which was followed by the said Title Suit No. 75 of 1981/6 of 1982. Courts are meant for adjudication of bona fide disputes, and not for dishonest and unscrupulous persons like the defendants engaging themselves in the luxury of litigations with the intent to harass and engage the other side in inexorable war of attrition to obtain unethical gains. In fact, the defendants were set to lose nothing by the continuous flow of litigations generated by them vesting on fraud.
24. Learned Counsel for the defendants has next contended that the suit is barred by the provisions of Order XXIII, rules 3 and 3A. The Court cannot go behind the compromise decree as if the lease was subsisting. Laying particular emphasis on Rule 3-A of Order XXIII, counsel submitted that no suit shall lie to set aside a decree on the ground that the compromise on which the decree was based was not lawful. He relies on the judgment of a Division Bench of the Rajasthan High Court reported in (Gopal Lal v. Babu Lal). The contention is stated only to be rejected. It is being raised for the first time in the present appeal, not having been raised before the Courts below. Secondly, the case of the parties in the present suit takes it completely beyond the scope of Rule 3-A which lays down that no suit shall lie to set aside the decree on the ground of compromise on which the decree is based was not lawful. In other words, an unlawful decree has to be challenged before the same Court, and in the same suit, where the compromise decree had been passed. It is manifest on the fact of it that the plaintiffs have not assailed the legality of the compromise decree. No fraud, misrepresentation or the like, or any such reason which might render a compromise decree unlawful, has been raised by the plaintiffs. The suit is based entirely on the ground that title did not pass to the defendants in view of non-registration of the document. The judgment of the Rajasthan High Court is inapplicable to the facts and circumstances of the present case. For the same reason, the judgment of a learned Single Judge of this Court in Jaimangal Kumar v. Dinesh Yadav (2005(1) Pat LJR 1) (supra) is inapplicable to the facts and circumstances of the present case. It has been held therein that any illegality including fault committed in regard to the compromise decree is required to be questioned in the same Court which has passed the compromise decree by filing a miscellaneous case, and not by separate suit in any other Court.
25. Learned Counsel for the plaintiffs is right in his submission that had the plea, if at all available to defendants, been raised at the inception, the plaintiffs could have taken note of it, could have withdrawn the suit and filed a miscellaneous case in the previous suit, and before the previous Court who had passed the compromise decree.
26. Coupled with this is the contention on behalf of the plaintiffs which impresses us that no prejudice has after all occurred to the defendants inasmuch as the previous suit as well as the present one have been disposed of by learned Subordinate Judge in the same Civil Court. The parties have focussed their attention on the issues arising out of the pleadings of the parties, have led evidence accordingly, and taken the decision of the Court. The hyper-technical and chimerical plea raised by the defendants has not deflected the course of justice by diverting the issues. Law is well settled that having submitted to the jurisdiction of the Court and having taken the chance of the judgment, the aggrieved party cannot at a later stage raise an issue particularly when the judgment has gone against him subject to the well known exceptions. Learned Counsel for the plaintiffs has rightly relied on the judgment of this Court reported in 2004(1) Pat LJR 332 (paras 9 and 10) (Dina Nath Prasad v. State of Bihar).
27. Learned Counsel for the plaintiffs has rightly relied on the provisions of Rule 2(2)(b) of Order XIV, and is set out hereinbelow for the facility of quick reference :--
'2(2) where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.'
Had the defendants raised the question of forum at the earliest stage, the Court may have disposed of the suit on this preliminary issue, namely, whether or not the provisions of Order XXIII, Rule 3-A create a bar to the present suit.
28. The issues are concluded by concurrent findings of facts, which binds this Court in second appellate jurisdiction. Reliance may be placed on the judgment of the Supreme Court reported in : AIR1999SC3325 (Hari Singh v. Kanhaiya Lal). The following portion of paragraph-16 of the judgment may be usefully quoted :--
'Similarly, the High Court interfered with the concurrent finding of facts that nuisance was created by the respondent by obstructing the passage leading to the appellant house by keeping onion bags leaving out of space of 11 feet to 3 feet only. The fact of this obstruction is also supported by the Commissioner report submitted in the present proceedings. The finding recorded on sub-letting and nuisance by both the Courts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial question of law by the High Court cannot be sustained and further we also do not find any substantial question of law arising therein. Learned Counsel for the respondent tried to submit with force by attempting to take us to the evidence of the witnesses to show their unworthiness for reliance. It is neither a case of no evidence nor perverse finding. All these submissions are within the realm of appreciation of evidence which should not have been interfered by the High Court far less for us to examine.'
29. Reference may also be made to the judgment of the Supreme Court reported in : [1999]2SCR728 (Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, paragraph 5 of which is set out hereinbelow for the facility of quick reference:
'5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous, being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.'
30. It is manifest from the foregoing discussion that no substantial question of law arises in this appeal. The issues which may be taken to be substantial questions of law in the second appellate jurisdiction fell for the consideration of the Supreme Court in its judgment reported in AIR 2001 SC 965 (Santosh Hazari v. Purushottam Tiwari), the relevant portion of which is set out hereinbelow for the facility of quick reference.'
'A point of law which admits of no two opinions may be proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the ease. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any list.'
I had the occasion to apply the same in my judgment reported in 2003 (3) Pat, LJR 100 (Sheo Chand Choudhary alias Sheochan Choudhary v. Adalat Hussain). The judgment of the Supreme Court in : [1999]2SCR728 (Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors.), is illuminating and is to the same effect. The present case is entirely covered by the judgment of the Supreme Court in Bhoop Singh : AIR1996SC196 (supra).
31. In the result, the appeal fails and is dismissed with costs throughout.