IMPORTANT POINTS
(1) Family settlement only declares rights which are already possessed by parties. An aggrieved person can seek enforcement of family settlement in a suit for declaration wherein family members have some semblance of right in property or any pre-existing right in property.
(2) Family members can enter into settlement during pendency of proceedings before Civil Court as well. Such settlement would be binding within members of family.

ORDER :

Leave granted.

1. The plaintiff is in appeal before this Court challenging the judgment and decree passed by the High Court on 28.10.2006 whereby appeal filed by the defendant was allowed and the suit for declaration challenging the orders passed in mutation proceedings was dismissed.

2. The parties herein are the two sons of Late Vijendra Singh. The appellant filed a suit for possession in the year 1978 disputing the Will dated 04.12.1958 executed in favour of the defendant. The appellant claimed half share of the land as described in the plaint. During the pendency of suit, a decree was passed on the basis of compromise arrived at between the parties. The terms of compromise read as under:

“The plaintiff shall be delivered possession of Khasra No. 513/1 area measuring 8 Kanals 18 Marlas as per Tatima Ex.P-2 by the defendant and the plaintiff shall be exclusive owner thereof and the defendant shall continue to remain in physical possession as an owner of Khasra No. 513/2 area measuring 143 Kanals and 16 Marlas.

The plaintiff shall be owner of Khasra No. 516/1 area measuring 27 Kanals 11 Marlas and the defendant shall also pay to the plaintiff a sum of Rs. 10,000/- within one month from today. The plaintiff shall also be owner in respect of the land recorded in the ownership of the defendant in Patwars Dhaneta, Nohngi, Choru and Saproh in respect of Ghair Mumkin Land.”

3. In pursuance of the decree so passed, the plaintiff sought a mutation of the 1/2 share of the land vesting to him which was allowed by the Naib Tehsildar on 10.02.1983. However, an appeal against the said mutation was disposed of with a direction to Naib Tehsildar to decide the mutation afresh as the mutation was sanctioned without granting any opportunity of being heard to the respondent.

4. The appellant thereafter filed an appeal before the Divisional Commissioner. Such appeal was dismissed on the ground that the compromise decree in the absence of registration is against the provisions of the Registration Act, 1908. It was held as under:

“From the perusal of the record, it is revealed that the decree passed by the Ld. Sub Judge in Civil Suit No. 45 of 1978 is a compromise decree concerning delivery of possession of Khasra No. 513/1 measuring 8 Kanals 18 Marlas and owner of Kh. No. 516/1 measuring 27 Kanals 11 Marlas situated in patwars Dhaneta, Nohang, Choru and Saproh in respect of Gair Mumkin Land. The present appeal is in respect of other land which was not the subject matter of suit in the civil court under section 17(2)(vi) of Indian Registration Act the compromise decree which related to the subject matter of the suit remained immune from registration. The compromise decree which incorporated matters beyond the scope of the suit, requires registration. Therefore, the land under dispute which is beyond the scope of the suit or compromise decree requires registration. The Assistant Collector, IInd Grade Nadaun vide his orders dated 24.6.1989 has sanctioned the mutation without the registration of the compromise decree is against the provision of the act ibid and the Ld. Collector has rightly accepted the appeals of the respondent Tikka Maheshwar Chand. Hence, these appeals are dismissed and the order of the Collector dated 13.2.91 is upheld.”

5. The appellant subsequently filed a suit for declaration challenging such order passed by the Commissioner. The suit was dismissed by the learned Sub Judge, Ist Class, Hamirpur on 20.11.2002. But the appeal preferred by the appellant was allowed by the learned District Judge, Hamirpur in 19.08.2004. The said order was under challenge in the second appeal before the High Court. The High Court set aside the judgment and decree passed by the first appellate court and the suit was dismissed on the ground that the land even though being subject-matter of compromise, was not the subject-matter of the suit and therefore the decree required registration under Section 17(2)(vi) of the Registration Act, 1908.

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