Judgment:
Vikramaditya Prasad, J.
1. The substantial question to be answered in this appeal is 'Whether in terms of the compromise, Exhibits-5 and 7, the sale deed, Exhibit-A/2, executed by defendant No. 1 in favour of defendant Nos. 2 to 4 is legal and valid?'. During the course of hearing, no further substantial question of law was raised.
2. The dispute is with regard to 33 decimal of land (Schedule A to the plaint) having a well and house in Khata No. 167 plot No. 1326 of village-Barsot, P.S. Barhi, Hazaribagh, bounded in north by Gautam Rasul, South G.T. Road, East Rasta, West-Ramchandra Mahto. The plaintiffs claim the lands on the basis of two registered sale deed each for 16 1/2 decimals of land, Ext. 3, 3/A, executed by Jangli Khalifa son of Dukhan Khalifa on 10.12.1981, for consideration of Rs. 19,000/- and possession thereof by living in the house and cultivating the land so purchased. The said land was sold by defendant No. 1, Raho Khalifa, a brother of Dukhan (father of vendors of plaintiff) by a registered sale deed to defendant No. 2 to 4, Dwarika Mahto and others. Thus, the suit had been filed for a declaration that the subsequent sale is not binding on the plaintiff and also for confirmation of his possession of the suit land and in alternative, for recovery of the possession. According to the plaintiffs, title to his vendor, Jangli Khalifa son of Dukhan Khalifa, had arisen out of a partition among the three brothers, when Dhukhan and his another brother, Chhedi, got 50 decimals of land in plot No. 1326 and Raho (the vendor of the subsequent sale) got his share in the other plot and after partition, his vendor's father exercised proprietary rights over his share by executing a conditional sale, which was again reconveyed to him and also by mortgaging some part of the land in his share to defendant No. 1, which was also redeemed. Thereafter, in a proceeding under Section 145, Cr PC in M. Case No. 178/76, a compromise petition, Ext. 5, was filed jointly by Raho and Dhukhan. When Raho admitted that 34 decimal of land in plot No. 1326 belonged to Dukhan and whatever in that plot was sold by Dukhan to Ramchandra will remain with Ramchandra and consequently, an order under Section 145, Cr PC, Ext. 7, was passed, in return Raho got lands and other plots as detailed in Ext. 5 and possession of Ramchandra was declared. And this. 33-2/3 decimal of land has been purchased by the plaintiff from Jangli Khalifa son of Dukhan Khalifa. Thus, according to the plaintiffs, after the compromise, as Raho, defendant No. 1, was left with no right, title and interest in the land of plot No. 1326 and thus, he could not have sold the land, the sale made by him in favour of defendant Nos. 2 to 4 was invalid, particularly when defendant No. 2 knew of the sale in favour of plaintiffs already made by Dukhan.
3. According to the written statement, the partition among three brothers is admitted but according to Raho Khalifa, defendant No. 1, in plot No. 1326, Raho and Dukhan, got 25 decimals of land each, as these lands were by the side of G.T. Road and Chhedi got 51 decimals of land in the plot as this was in back of the share of Raho and Dukhan, so this extra land was given to Chhedi. Thus, it was denied that Dukhan had 50 decimals of land in plot No. 1326. Plaintiffs claim that Dukhan sold 12 decimals of land to defendant No. 3-4 in plot 1326 was said not to fully correct and it was stated that Dukhan sold 6 decimals on 31.3.1976 in plot No. 1326, 4 decimals on 10.2.1976 in the same plot and 8 decimals on 12.11.1975 to defendant No. 3-4 and put them in possession. The proceeding under Section 144, Cr PC was admitted, but regarding compromise (Ext. 5), it was said that defendant No. 1 became a victim of fraud as compromise petition was not read over to him and is not binding on defendants. In reply to para 13 of the plaint, where plaintiff had said that Raho Khalifa got in turn lands in other plot, it was said in para 13 of the written statement that it was false and Raho Khalifa got land to the extent of 51 decimal in plot No. 1326 arid other lands stands above.
4. The learned trial Court decreed the suit. The learned appellate Court framed two point for determination :--
(1) Whether the plaintiffs have got title and possession over the Schedule A lands?
(2) Whether the sale deed dated 10.12.1981 executed by Raho Khalifa in favour of defendant No. 2 is Illegal and invalid and liable to be cancelled?
Both the points were determined by the learned appellant Court jointly. Learned appellate Court, while considering the Ext. 5, compromise petition, found that this was not signed by defendant Nos. 2 to 4 and therefore, it was not binding upon them and thus, the Ext. 5 also supports the story of partition as put forward by defendants. It further found that Ext. 5 shows that Raho Khalifa had got land in plot No. 1326, otherwise there was no question of giving 33.66 decimals of land of plot No. 1326 to Dukhan Khalifa for other plots and also held that the title of Raho Khalifa over plot No. 1326 could not have been extinguished by order passed under Section 145, Cr PC and the exchange, if any, should have been done by executing registered deed of exchange. Ultimately, learned appellate Court, on consideration of evidence, found that Jangli Khalifa, vendor of the plaintiff, had no title of the said land on the date he executed the sale deed in favour of the plaintiffs and the sale deed executed by Raho in favour of defendant No. 2 is legal and valid.
5. Ext. 5 has been construed by the learned appellate Court in the aforesaid manner, while it has been taken by the trial Court of its face value. Ext. 5 admittedly is an undersigned document, filed in a proceeding under Section 145, Cr PC. It appears from Ext. 7, the order passed in that proceeding, that Raho Khalifa was the first party and Dukhan Khalifa and others were second party and by that order, the possession of Ramchandra (2nd party) was declared over 12 decimals of land. It has to be remembered here that the 12 decimals of land had been sold by Dukhan to Ramchandra and that land was in plot No. 1326. This order does not declare possession either of Raho or Dukhan over the rest area of land in plot No. 1326. This order was passed on the basis of a compromise petition filed by both the parties. Thus in this proceeding, compromise petition was given effect to the extent of Ramchandra's possession only.
6. Let me first examine what actually is there in Ext. 5. I find (1) it has the signature of Raho and Dukhan on it. Paragraph (i) of it reads that the land was obtained from their father, (ii) after the death of father, the three brothers equally divided the property, sub-para (iii) shows that the first party (Raho) has given his share of 33-1/3 decimal of land in plot No. 1326 to Dukhan and Dukhan had sold 12 decimal of land to Ramchandra and that was to remain with Ramchandra without any objection by Raho. Clause (4) of this compromise says that out of his share in plot No. 1776, 2nd party (Dukhan) gave to Raho 17 decimal + 5-1/2 decimal from plot No. 1361 + out of total area of plot No. 1391 and 392, 5 decimal of land, thus, totaling 27-1/2 decimal of land was given out of five plots to Raho by Dukhan arid there is now no grievance over the less and high quantum of land to either side.
This compromise petition, thus, does not leave any share to Raho in plot No. 1326 and that is the point taken by plaintiff that as per this compromise, as Raho had no interest left, he was not legally competent to execute Ext. A/2, which is invalid.
7. It was argued by the learned counsel for the respondents that as that petition was not registered, it can neither create a right nor it can extinguish the right in land, in favour of one or the others and in absence of registration as required by Section 47 of the Registration Act, this petition cannot be taken as a document of relinquishment of the right of Raho over the properties of plot No. 1326 and therefore, when the learned appellate Court has found the petition as propounded by defendants to be correct, then Raho had right in property of plot No. 1326 (25 decimal) and as the compromise does not extinguish his that right, the transfer made by him is not illegal; consequently, the sale deed, Ext. A/2, of the defendants is not void and invalid.
8. The tenor of this petition (Ext. 5) is that in plot No. 1326, Raho had his share. Had he not, this question of his entering into compromise with Dukhan, particularly in respect of the portion of land of that plot sold by him to Ramchandra could not have arisen. But this Ext. 5 is simply a petition and does not form the part of a decree, therefore, in absence of registration, it is not competent to create or extinguish a right over immovable property even by way of exchange. Even if it is a compromise petition creating extinguishing the right in immovable properties that also in absence of registration, cannot make it admissible for evidence of creation or extinguishing the right but nevertheless can be used only for appreciating collateral facts. The title of the document, whether of compromise or of exchange, will mean the same thing and do have the same consequence.
9. Ext. A/2 is a sale deed executed by Raho for 19 decimals of land of plot No. 1326 for consideration and registered two days after the sale in favour of plaintiff by Jangli. It is relevant to know what are the collateral incident. PW 2, who is the son of Dukhan, has stated that even after partition the joint rent is paid and he also admitted that Raho had his illegal possession over his land for the last 40 years (DW 2 of p-15). This indicates that even after the alleged exchange by compromise, Raho had possession, though illegal according to Jangli the vendor of the plaintiff, over his land. The plaintiffs, as they were strangers to the original partition, could not be a witness of that partition among three brothers and allotment of share. The learned appellate Court has come to a finding that the story of partition as propounded by the defendants is acceptable. I do not find any reason to differ with this finding and according to defendant- Raho, each he and Dukhan both got 25 decimal in plot No. 1326 and Chhedi got 51 decimal in back portion. This was so because land allotted to Raho and Dukhan was by the side of G.T. Road. This fact read with admitted with possession of Raho over the lands which is being claimed by Jangli, even after the compromise petition, goes to show that the compromise was not acted upon and not being registered, it also did not extinguish the rights of Raho over his share in plot No. 1326.
10. Another question raised by the learned counsel for the appellant was that the deed in favour Of defendant, Ext. A/2, was subsequent to the registered deed in favour of the plaintiffs and so it was valid.
Possession is sufficient notice. If possession of Raho is admitted by vendor himself, transfer of property by him was not legal. The plaintiff had to take notice of this possession. In ignorance of such possession, the earlier registration cannot invalidate the subsequent registration.
11. Argument was raised by the learned counsel for the respondent that in view of the decision (1998) 6 SCC 432, when the finding of fact, lower appellate Court is on evidence, the High Court in second appeal cannot substitute its own finding on re-appreciation of evidence merely on the ground that other view was possible. This legal position not in dispute and mere consideration of Ext. 5 to find its appreciation by appellate Court does not amount to re-appreciation of fact,
Referring to 2004 (3) Supreme Today 474, it was argued by the learned counsel for the appellant that as the compromise petition was not registered, the trial Court should not have relied on it and decreed the suit. I also agree with this argument.
The learned counsel for the respondents argued that the respondent No. 1 Raho in view of Ext. 5 was estopped from executing a sale deed (Ext. A/2) under Section 115 of the Evidence Act.
12. Section 115 of the Evidence Act reads as follows :--
'115 Estoppel--When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representatives, to deny the truth of that thing.'
A bare reading of this section makes it clear that another person must believe a thing to be true to act and he must act upon such belief. In this case, it has been found that the vendor was not in possession, which means, that compromise even though signed was not acted upon. Thus, this compromise simply remained a declaration and another person, in the instant case, Jangli, in view of the possession not having been relinquished on the basis of that compromise by Raho, while executing the deed, had not acted on the basis of such a belief. Therefore, in my considered view, this section does not apply against Raho, defendant No. 2.
13. In the result, I do not find any error in the impugned judgment of first appellate Court. This appeal is dismissed with costs. Advocate's fee Rs. 250/-.