Bachan Singh Vs. Kartar Singh and Others
EmailAppeal: Civil Appeal No. 9991/1995
Petitioner: Bachan Singh
Respondent: Kartar Singh and Others
Apeal: Civil Appeal No. 9991/1995
Judges: V.N. KHARE & B.N. AGRAWAL, JJ.
Date of Judgment: Jul 31, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 2 with Indian Registration Act, 1908 – Section 17 – Decree passed on admission – No appeal or suit to set-aside the same – Later, suit by defendant to set aside the decree of first suit, as it has been obtained by fraud – Trial court dismissing suit but first appellate court reversing judgment and decreeing the suit on grounds that decree was only a sale to overcome the provisions of registration. Held that a consent decree doesn’t require registration and High Court was correct in setting aside the decree of first appellate court. (Para 2)
JUDGEMENT:
ORDER
1. Earlier defendant-respondents herein brought suit no. 1365/81 for declaration that they have become owners of the land on the basis of adverse possession. In para 5 of the plaint, it was averred that the defendants in the suit were paid a sum of Rs. 1,98,000/- in equal share. The defendants also agreed to get the necessary correction made in the record in favour of the plaintiff with regard to the suit land, but they have now refused to admit the claim of the plaintiff. A written statement was filed by the plaintiff-appellant herein, who was the defendant in suit no. 1365/81 wherein the claim of the plaintiff in the said suit was admitted. On the basis of the said admission, the suit was decreed by the trial court on 13.11.81. It is also admitted between the parties that neither any appeal was preferred against the judgment of the trial court nor any application to set aside the decree was filed by the defendant in the said suit and the decree has attained finality. Subsequently, in the year 1982, the plaintiff-appellant herein, brought a suit for declaration that decree passed in suit no. 1365/81 was void and nullity on the ground that it was obtained by fraud. The trial court dismissed the suit. However, on appeal, the first appellate court allowed the appeal and decreed the suit in favour of the plaintiff-appellant on 30.7.87. Against the said judgment, the defendants preferred a second appeal. The High Court allowed the second appeal and set aside the judgment and order of the first appellate court. It is against the said judgment, the appellant has preferred this appeal.
2. Learned counsel appearing for the appellant urged that the decree passed in suit no. 1365/81 was void, having obtained by fraud and, therefore, it could be avoided under section 44 of the Evidence Act. We do not find any merit in the argument. It may be stated that the plaintiff was the defendant in the suit no. 1365/81 filed by the respondents. In the said suit, the claim of the respondents was admitted by the present plaintiff-appellant and on the basis of the said admission, the suit was decreed. In case the present appellant was not satisfied with the decree, either he could have filed an appeal or moved an application for setting aside the decree alleged to have been obtained by fraud. Before the first appellate court, the plaintiff-appellant stated that there was no fraud in passing the decree in suit no. 1365/81, but the appellate court set aside the decree of the trial court on the ground that the decree was a sale only to overcome the provisions of the Indian Registration Act. This view of the appellate court was not correct. A consent decree passed by the court is not required to be registered under the provisions of the Indian Registration Act and, therefore, the view taken by the first appellate court was not legally correct and has been rightly set aside by the High Court. We are, therefore, in agreement with the view taken by the High Court.
3. Consequently, this appeal fails and is, accordingly, dismissed. There shall be no order as to costs.
1. Earlier defendant-respondents herein brought suit no. 1365/81 for declaration that they have become owners of the land on the basis of adverse possession. In para 5 of the plaint, it was averred that the defendants in the suit were paid a sum of Rs. 1,98,000/- in equal share. The defendants also agreed to get the necessary correction made in the record in favour of the plaintiff with regard to the suit land, but they have now refused to admit the claim of the plaintiff. A written statement was filed by the plaintiff-appellant herein, who was the defendant in suit no. 1365/81 wherein the claim of the plaintiff in the said suit was admitted. On the basis of the said admission, the suit was decreed by the trial court on 13.11.81. It is also admitted between the parties that neither any appeal was preferred against the judgment of the trial court nor any application to set aside the decree was filed by the defendant in the said suit and the decree has attained finality. Subsequently, in the year 1982, the plaintiff-appellant herein, brought a suit for declaration that decree passed in suit no. 1365/81 was void and nullity on the ground that it was obtained by fraud. The trial court dismissed the suit. However, on appeal, the first appellate court allowed the appeal and decreed the suit in favour of the plaintiff-appellant on 30.7.87. Against the said judgment, the defendants preferred a second appeal. The High Court allowed the second appeal and set aside the judgment and order of the first appellate court. It is against the said judgment, the appellant has preferred this appeal.
2. Learned counsel appearing for the appellant urged that the decree passed in suit no. 1365/81 was void, having obtained by fraud and, therefore, it could be avoided under section 44 of the Evidence Act. We do not find any merit in the argument. It may be stated that the plaintiff was the defendant in the suit no. 1365/81 filed by the respondents. In the said suit, the claim of the respondents was admitted by the present plaintiff-appellant and on the basis of the said admission, the suit was decreed. In case the present appellant was not satisfied with the decree, either he could have filed an appeal or moved an application for setting aside the decree alleged to have been obtained by fraud. Before the first appellate court, the plaintiff-appellant stated that there was no fraud in passing the decree in suit no. 1365/81, but the appellate court set aside the decree of the trial court on the ground that the decree was a sale only to overcome the provisions of the Indian Registration Act. This view of the appellate court was not correct. A consent decree passed by the court is not required to be registered under the provisions of the Indian Registration Act and, therefore, the view taken by the first appellate court was not legally correct and has been rightly set aside by the High Court. We are, therefore, in agreement with the view taken by the High Court.
3. Consequently, this appeal fails and is, accordingly, dismissed. There shall be no order as to costs.
