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2003 Supreme(MP) 494
2004(1) JLJ 206
S.K. Pande, J.
Rukayya Bai (Smt.) v. Smt. Munni Bai and another
S.A. No. 119 of 1995; against judgment and decree of Add1. Judge to the Court of District Judge, Hosangabad, in Civil Appeal No. 34-A of 1987; reversing the judgment and decree passed by Civil Judge, Class I, Sohagpur in Civil Suit No. 15-A of 1986;
Decided on 9.4.2003.
Ravish Agrawal for appellant; A.D. Deoras for respondents.
Headnote:(1) Registration Act, 1908 -- S. 17 -- family settlement reduced to writing -- contents showing relinquishment of right and title in house -- compulsorily registrable -- cannot be used to protect possession if not registered.
"Whether the appellant is entitled to protect possession on the basis of document Ex. P-1 in spite of the fact that the document was not registered?" [Para 2
Held: The part of recital Ex. P-1 speaks of relinquishment of right by remaining legal heirs in favour of late Tahir Ali, Ex. P-1 cannot be termed to be a memorandum of family settlement. It is a deed relinquishing the right, title. As such, document Ex. P-1 could not be read in isolation of the facts aforesaid only to refer alleged exclusive possession of late Tahir Ali. AIR 1976 SC 807 followed. [Para 7
(2) Civil P.C., 1908 -- S. 100 -- High Court refused to formulate substantial question on a point at motion hearing -- cannot hear the case on such point in final hearing.
Where in motion hearing High Court refused to formulate a particular question of law as a substantial question of law, High Court cannot permit rehearing on that question at the stage of final hearing. 1991 JLJ 636 relied on. [Para 6
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**D;k bl rF; ds ckotwn fd nLrkost jftLVªhd`r ugha Fkk] vihykFkhZ nLrkost izn‘kZ ih&1 ds vk/kkj ij dCtk lqjf{kr djus dk gdnkj gS \**
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¼2½ flfoy izfØ;k lafgrk] 1908 && /kkjk 100 && lekosnu dh lquokbZ esa mPp U;k;ky; }kjk fof‘k"V fcanq ij lkjoku~ iz‘u cukus ls bUdkj fd;k x;k && vafre lquokbZ esa ,sls fcanq ij lquokbZ ugha dh tk ldrhA
tgk¡ lekosnu dh lquokbZ esa mPp U;k;ky; }kjk fof/k ds lkjoku~ iz‘u ds :i eas fof/k dk fof‘k"V iz‘u cukus ls bUdkj fd;k x;k] ogk¡ mPp U;k;ky; }kjk vafre lquokbZ ds izØe ij ml iz‘u ij iqu% lquokbZ vuqKkr ugha dh tk ldrhA 1991 ts ,y ts 636 voyafcrA
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1. This second appeal u/s 100 CPC is directed against the judgment-decree dated 23.12.1994 passed by the Additional Judge to the Court of District Judge, Hoshangabad in C.A. 34-A/87 reversing the judgment-decree dt. 8.5.1987 decreeing C.S. 15-A/86 for declaration and injunction.
2. This second appeal U/S 100 CPC has been admitted on the following substantial question of law :
"Whether the appellant is entitled to protect possession on the basis of document Ex. P-1 inspite of the fact that the document was not registered?''
3. The facts in brief are, that Fida Hussain and Abdul Hussain were brothers. The suit house No. 138, 139, 140 Ward No. 10, Pipariya district Hoshangabad situated on land bearing Khasra No. 161/2 plot no. 43, area 2500 sq.ft. was the matter of dispute between two brothers. Abdul Hussain instituted C.S. 4-A/49 against Fida Hussain and the said suit was decreed on 12.11.1950. First Appeal 4/51 arising out of said judgment-decree was preferred by late Fida Hussain. Fida Hussain since dead, legal heirs Tahir Ali, Tayyab Ali, Hussain Ali (defendant no. 3) and others were brought on record. During continuance of the appeal financial condition of legal heirs since was not satisfactory, they agreed and settled that late Tahir Ali alone will prosecute the matter in first appeal 4/51 at his expenses. In the event Tahir Ali wins the case he alone will be the owner of the disputed house and rest of the legal heirs shall not claim any right, title or interest in the suit property. In case he looses the case he will not be entitled to recover any expenses and cost from the remaining legal heirs. Late Tahir Ali prosecuted the appeal and succeeded in it vide judgment dt. 29.3.1957. By this judgment in First Appeal C.S. No. 4-A/49 filed by Abdul Hussain against Fida Hussain was dismissed. On 17.5.1957 the family members recorded a memorandum of settlement in favour of late Tahir Ali that he alone has become the owner of the suit house and plot and that with his permission Hussaina Ba, Husain Ali, Allahrakhi live in a portion of the house. These documents (Ex. P-3, P-4) were unregistered and signed by all the legal heirs of the deceased Fida Hussain.
4. Tahir Ali, therefore, in exclusion of others remained in possession of the suit house-plot as owner. The dispute arose when Hussaina Ali vide registered sale deed dt. 13.10.1983 sold the suit house to defendants-respondents Smt. Munnibai, Smt. Ramsudha. Tahir Ali filed C.S. 15-A/86 for declaration and injunction on the basis aforesaid. The suit was decreed by the Civil Judge vide judgment dated 8.5.1987. First Appeal 34-A/87 assailing the aforesaid judgment-decree was preferred by defendants-respondents Munnibai, Ramsudha. The appeal was allowed vide judgment dt. 23.12.1994 and the decree passed in C.S. 15-A/86, in favour of late Tahir Ali were set-aside. In this second appeal filed by Tahir Ali since dead prosecuted by legal heirs through Rukaiya Bi widow of Abdul Hussain, the judgment-decree passed in C.A. 34-A/87 has been assailed mainly on the ground that by virtue of family settlement deed Ex. P-1 late Tahir Ali was entitled to protect possession and that the sale deed dt. 13.10.1983 in favour of defendants respondents Smt. Munnibai, Smt. Ramsudha was invalid, inoperative.
5. I have heard Shri Ravish Agrawal, learned counsel for the appellants and Shri A.D. Deoras, learned counsel for the respondents.
6. Learned counsel for the appellants tried to explain other points also, such as rejection of application under Order 6 Rule 17 and under Order 41 Rule 27 CPC filed by the appellant before the First Appellate Court in C.A. 34-A/87. It has been opposed on the ground that where in motion hearing High Court refused to formulate a particular question of law as a substantial question of law, High Court cannot permit rehearing on that question at the stage of final hearing. In support, judgment reported in 1991 JLJ 636 = 1993 MPLJ 655 Kishanchand v. Ramkrishna has been relied.
