TaxTMI 
TaxTMI 
TaxTMI 
2022 (8) TMI 1595
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....correcting the revenue 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 responsibility for verifying and compiling land revenue entries and the procedure for amending entries in case of errors or disputes, were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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: 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 between the plaintiff and Abdul Jalil Khan and accordingly ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at 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 Singh [(2015) 3 SCC 465] 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 & Ors[(2017) 3 SCC 740]., "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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....usion 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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 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 'adopte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 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 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 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atti vs. Ram Singh [supra]. Lastly, in Ripudaman Singh vs. Tikka Maheshwar Chand [(2021) 7 SCC 446], 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. 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 Cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 execution or in collateral proceedings [(1991) 3 SCC 136, Para. 5 | (2017) 3 SCC 740, Para. 35]. Accordingly answering in favour of the defendants, the DC's order in our opinion can have no legal effect as th....