S. KULDEEP SINGH & ANR versus S. PRITHPAL SINGH on 2 August 2022

[2022] 13 S.C.R. 100

SUPREME COURT REPORTS

[2022] 13 S.C.R.

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S. KULDEEP SINGH & ANR.

v.

S. PRITHPAL SINGH

(Civil Appeal No. 81 of 2011)

BAUGUST 2, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Jammu & Kashmir Agrarian Reforms Act, 1972 – s.2(4), 2(6),2(7) and 50 – Kashmir Agrarian Reforms Rules, 1973 – r. 5 – Jammu& Kashmir Agrarian Reforms (Suspension of Operations Act), 1975C– Jammu & Kashmir Agrarian Reforms Act, 1976 – RegistrationAct, 1977 – s.17 – Jammu & Kashmir Transfer of Property Act –s.138 – Suit for declaration and possession – The Suit was filed fordeclaration and possession by the respondent-plaintiff who wasthe adopted son of one ‘SS’ (who was the owner of property is inDdispute) – Respondent claimed that he received gifts of land in hisfavour from SS – He supported his claim by producing a compromisedeed dated 18.12.1975 in between himself and one ‘AJK’(tenant)on which there was a thumb impression of SS endorsing theinstrument – Deputy commissioner (DC) passed an order recordingthe compromise on 24.12.1975 – The appellant contended that theyEare in possession of the land – The District judge passed decree infavour of plaintiff-respondent, the finding was primarily based oncompromise deed – The first appeal by the appellants herein wasdismissed – The LPA preferred by the appellants was dismissed –Appellants approached the Supreme Court and contended that theFcompromise does not confer any title on the respondent and thatsuch an instrument requires compulsory registration as per s.17 of1977 Act and further, that in terms of Section 3 of the SuspensionAct, 1975, the operation of the concerned provisions and allproceedings thereunder 1972 Act remained in suspension until30.3.1976 and therefore 18.12.1975 compromise and the DC’s orderGdated 24.12.1975 for correction of revenue records based on thecompromise are non-est – Held: With his endorsement on thecompromise, SS intended to give the right of personal cultivationbut the same does not in any manner suggest that SS had intendedto confer title on the respondent – The compromise cannot be treatedHas a family arrangement – Furthermore, the compromise and the

DC’s consequent Order, was passed in a revenue proceeding thusthe compromise did not fall under the exception category underSection 17(2)(vi) of – Thus, compromise in order to have legal effectneeded registration under the Registration Act, 1977 – The DClacked inherent jurisdiction to either entertain the appeal or endorsethe compromise during the suspended phase – Any order or decreeso passed through such unlawful exercise of power, will be a legalnullity – Decree in favour of respondent (plaintiff) set aside.

Allowing the appeal, the Court

HELD:1. A. Whether the compromise dated 18.12.1975confers title?

In order to adjudicate the above issue, this Court needs tolook at the compromise in its intent and functioning. Thecompromise between the Plaintiff and tenant was recorded in aproceeding for correction of revenue records under the 1972Act and the Rules. There, the Plaintiff was admitted to be theowner and in possession of land which he personally cultivated.SS with his thumb impression endorsed the compromise deed.On this the defendants have contended that the said statementhas to be read in the context in which it was made and how theparties to the transaction understood the same. The plaintiff saysthat his adoptive father SS intended to confer title on the Plaintiffand SS would not have looked into the definition of “owner” underthe 1972 Act, before making the endorsement on the compromise.On this, it cannot be ignored that the parties effectuated thetransaction in a proceeding under the 1972 Act. Thus, thecompromise exists within the four corners of the 1972 Act, andmust therefore be read by applying the statutory provisions. [Para18][116-C-E]

2. The purpose of the compromise decree in the correctionproceedings under Chapter III of the Rules pertain only torevenue entries, and the possession of land in capacity of apersonal cultivator. This could hardly confer any lawful title onthe plaintiff over SS’s land. With his endorsement on thecompromise, SS perhaps intended to give the right of personalcultivation but the same does not in any manner suggest that SShad intended to confer title on the plaintiff. The land is therefore A

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Aof the orchard category. In this situation, the land which is thesubject matter of the Compromise being an Orchard stoodexcluded from the definition of land under S. 2(4) of the 1972Act. As such, the title for such category of land could not vestwith the Plaintiff. Thus This Court held that the compromise(18.12.1975) does not convey any lawful title on the Plaintiff.B[Paras 19, 20, 21][116-G; 117-B-E]

B. Did the compromise require registration?

3. It is contended by the defendants that the compromisedid not comply with Section 17 of the Registration Act, 1977 whichCmandates compulsory registration, and without a registereddocument, no title or claim or possession can fructify. Thecompromise was not amongst family members but between theplaintiff and the tenant (not a family member). The statement ofSS “I accept the compromise”, is only with regard to the internalarrangement regarding the tenancy, and this will not make it aDfamily arrangement. Moreover, the plea that compromise is a“Family Arrangement” is raised for the first time before thisCourt. The Plaintiff significantly had waived his claim to otherassets left by SS (on the basis that the Plaintiff is his adoptedson), before the High Court. He cannot therefore be permittedEto raise such a contention for the first time before this Court.Even otherwise, tenant was not a family member. Thus, he couldnot have been a party to a so called “family arrangement”. Besides,none of the other family members were parties to the saidcompromise either. Therefore, the documents in question wouldrequire registration and it cannot be treated as a familyFarrangement. [Paras 22 and 23][117-F-H; 118-A-C]

4. The compromise was required to be registered, underSection 49 of the Registration Act, 1977 and also under Section138 of the J&K Transfer of Property Act. Without such registrationno title can fructify for the plaintiff from the documents in question.GFurthermore, the compromise and the DC’s consequent Order,was passed in a revenue proceeding and this was definitely not apart of a Court proceeding. That being the case, the compromisedid not fall under the exception category under Section 17(2)(vi)of Registration Act, 1977 (as applicable to then State of J&K).

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The above makes it abundantly clear that the compromise in orderto have legal effect needed registration under the RegistrationAct, 1977. Since title is claimed, and the plaintiff founded his entirecase on the compromise, it would necessarily require registration.Accordingly, question B is answered in affirmative. [Paras 26, 27and 28][119-F-H; 120-A-C]

5. The DC, lacked inherent jurisdiction to either entertainthe appeal or endorse the compromise during the suspendedphase. In cases where the authority lacked jurisdiction under aspecial Act and yet exercises powers, without authority of law,any order or decree so passed through such unlawful exercise ofpower, will be a legal nullity. The deficiency of jurisdiction of theauthority cannot be cured by the consent of the parties. Thechallenge to such an incompetent order could be set up whereverit is sought to be enforced or relied upon, even in execution or incollateral proceedings. Accordingly answering in favour of thedefendants, the DC’s order in our opinion can have no legal effectas the same was passed during the operation of Suspension Act,1975. This Court finds that the compromise being unregisteredcannot confer title on the respondent. [Para 30][121-B-D]

Bhoop Singh v. Ram Singh Major (1995) 5 SCC 709 :[1995] 3 Suppl. SCR 466; K. Raghunandan & Ors. v.Ali Hussain Sabir & Ors. (2008) 13 SCC 102 : [2008]8 SCR 657; Phool Patti v. Ram Singh (2015) 3 SCC465; Ajudh Raj v. Moti (1991) 3 SCC 136 : [1991] 2SCR 690; Mohammad Ansari v. Union of India & Ors.(2017) 3 SCC 740 : [2017] 1 SCR 422; Sitabai & Anr.v. Ramachandra AIR 1970 343 : [1970] 2 SCR 1; OmPrakash & Ors. v. R. K. Kalra (1988) 4 SCC 705 :[1988] 1 Suppl. SCR 556; Kale and Others v. DeputyDirector of Consolidation and Others (1976) 3 SCC119 : [1976] 3 SCR 202; Ram Charan Das v. GirijaNandini Devi and Others AIR 1966 SC 323 : [1965]3 SCR 841; Maturi Pullaiah and Another v. MaturiNarasimham and Others AIR 1966 SC 1836; K. C.Kappor v. Smt. Radhika Devi (Dead) by LRs. and Others A

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 81 of2011.

From the Judgment and Order dated 28.10.2009 of the High Courtof Jammu and Kashmir at Srinagar in L.P.A. No. 174 of 2008.

Huzefa A. Ahmadi, Sr. Adv., Ms. Kaveeta Wadia, Shahrukh Alam,Sarad Kumar, Rohan Sharma, Ms. Mantika Haryani, Ms. Astha Sharma,Advs. for the Appellants.

S. N. Bhat, Sr. Adv., D. P. Chaturvedi, Tarun Kumar Thakur,Ms. Parvati Bhat, Ms. Anuradha Mutatkar, Advs. for the Respondent.

The Judgment of the Court was delivered by HRISHIKESH ROY, J.

1. The present appeal is against the judgment and order dated28.10.2009 in LPA No.174/2008 where under the Division Bench of theHigh Court of Jammu & Kashmir at Srinagar upheld the decree in favourof the respondent-plaintiff rendered on 31.07.2003 by the learned DistrictJudge, Anantnag. The suit was filed seeking declaration and possessionin respect of the land measuring 11 Kanals and 15 marlas falling withinthe survey nos.1829 and 1838 situated at Ranbirpora, Anantnag. Theappellants are the natural son and daughter of late S. Sucha Singh whereasthe respondent/plaintiff S. Prithpal Singh claimed to be the adopted sonof Sucha Singh.

2. In the suit, Prithpal Singh as the plaintiff claimed that he receivedgifts of land in his favour from Sucha Singh. But although the suit scheduleproperties were more, the plaintiff confined his relief to the land measuring11 kanals and 15 marlas mentioned above and not any other lands of hisadoptive father Sucha Singh. In the plaint, Prithpal Singh enclosed certifiedcopy of a compromise deed in between himself and one Abdul Jalil Khanand the claim of the plaintiff centers around the said compromise deeddated 18.12.1975. The terms of the compromise being relevant areextracted hereinbelow:

“COMPROMISE PARTIES

Sir, compromise is submitted as under:-

1. That in the case entitiled above the parties have amicablycompromised as under; out of Survey No. 1829 = Four kanalsand five marlas and out of Survey No. 1835 Min one Kanal fifteen A

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Amarlas in total six kanals including trees and houses situated atRanbirpora Tehsil Anantnag will remain under the ownership ofthe Appellant in consideration of the Appellant under Survey No.1829 = 3 Kanals 15 marlas, 1838 min 8 Kanals in total = 11 kanals15 marlas including trees situated at village Ranbirpora TehsilAnantnag gives up his tenancy rights and hands over its possessionBto the Respondent who will be considered its owner, no disputeremains in future.

2. That the parties will bear their own costs of litigation, in light ofcompromise the land be recorded in the name of parties in theRevenue Registers.

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3. It is prayed the compromise be accepted and the appeal decidedon the condition mentioned that will do justice.

I also accept the Compromise Sardar Sacha Singh S/o Amar Singh Ranibirpora Anantnag Father of Respondent Thumb Impression.”

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F3. As can be seen Sardar Sucha Singh appended his thumbimpression to the above compromise deed with the expression “I alsoaccept the compromise”. The Deputy Commissioner, Anantnag (“D.C”for short) thereafter passed an order on 24.12.1975 on the File No.168/06 recording the presence of both parties and the settlement madeamongst them whereunder the tenant Abdul Jalil Khan gave up hisGtenancy rights over certain parcels of land and for the earlier noted11 kanals and 15 marlas including the trees situated on the said parcel atvillage Ranbirpora, the respondent was accepted to be the owner by thetenant. Consequential directions were accordingly issued by the D.C forentering the compromise in the revenue records and as such the order H

dated 24.08.1974 by the Circle Officer regarding correction of tenancywas disposed of in light of the compromise amongst both parties.

4. Parallelly, during the aforesaid proceedings, on 1.5.1972 theJammu & Kashmir Agrarian Reforms Act, 1972 (hereinafter referredto as, “the 1972 Act”) came into force under which new rights andobligations were created and jurisdiction was conferred on the competentauthority for the purpose of correcting the revenue records. Section 2(6) of this Act gave a wide interpretation to the term “owner” for thepurposes of revenue records and included “inferior owners”, and thoseclaiming through the proprietor. Similarly, under Section 2(7), “personalcultivation” by a person also included cultivation by owner and hisadopted son.

5. On the strength of Section 50 of 1972 Act, the Jammu andKashmir Agrarian Reforms Rules, 1973 (for short, “the 1973 Rules”)were notified. Rule 5 provided that the Khasra Girdwari Register forKharif 1971 upon due verification and authentication, was to be the recordof personal cultivation of lands as on 1.9.1971 (cutoff date). The CircleOfficers under Rule 7 were required to visit each village within theirjurisdiction to verify, amend, and authenticate entries for Kharif RegisterGirdwari 1971. Rule 15 provided the procedure for amendment of“return” or for collecting information for filing revenue entries underRule 11. This shows that after the cutoff date of 1.9.1971, the CircleOfficers were given new responsibility for verifying and compiling landrevenue entries and the procedure for amending entries in case of errorsor disputes, were also prescribed.

6. At that stage, Abdul Jalil Khan claiming tenancy rights on thesubject land applied for correction of tenancy to the Circle Officer andexercising the power for correction of tenancy, the Circle Officer on24.8.1974 ordered the application made by the tenant Abdul Jalil Khan.The tenant Abdul Jalil Khan being aggrieved preferred appeal beforethe DC under the 1972 Act but in the meantime on 25.3.1975, the Jammu& Kashmir Agrarian Reforms (Suspension of Operations Act), 1975(hereinafter “the Suspension Act, 1975”) was notified. The suspensionwas to be in effect initially till 19.12.1975 but was extended later to30.3.1976. These dates are significant because the compromise dated18.12.1975 was entered while certain provisions of 1972 Act remainedinoperative because of the Suspension Act, 1975.

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A7. On 1.6.1978 the new Jammu & Kashmir Agrarian ReformsAct, 1976 (hereinafter referred to as, “the 1976 Act”) came into forcewith effect from 13.07.1978, replacing the suspended Act of 1972.

8. In course of verifying and correcting the entries in terms of theorder passed by the Collector on 24.12.1975 (during the period while theBAct of 1972 was under suspension) inquiries were conducted and thecompetent officer attested mutation no.4133 whereby the land with treesto the extent of 11 Kanals and 15 Marlas, were re-recorded in the nameof late S. Sucha Singh. The appellants, who are the natural son anddaughter of the land owner, claimed that since that date till today, theyare in possession of the land although in the interregnum, their father S.CSucha Singh died.

9. The civil Suit by the respondent no.1 was initially institutedbefore the Jammu & Kashmir High Court, for declaration and possessionof land and it was claimed in the Suit by the adopted son that the appellantshave forcibly dispossessed him from the land claimed in the Suit. TheDrespondent has founded his claim over Sucha Singh’s land on the basisof the compromise dated 18.12.1975 and the subsequent order recordingthe compromise passed by the DC on 24.12.1975. Although the respondentclaimed to be adopted son of Sucha Singh (appellants’ father), similarassertion was not made on such basis for other properties of SuchaESingh. The Suit filed before the High Court was transferred in 1995 tothe Court of the District Judge, Anantnag where the appellants as thedefendant nos.1 and 2 filed their written statement stating, inter alia, thatthe 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 theplaintiff. On the given-up claim based on the gift executed by late SuchaFSingh, the stand of the appellants/defendants was that the documentswere revoked by their father during his life time and the revocation deedexecuted in September, 1975 was registered on 22.1.1976. Notably theamendments sought by the plaintiff to the plaint was not pressed/rejectedand the relief in the suit was confined to 11 Kanals and 15 Marlas ofGland based on the compromise dated 18.12.1975 and the DeputyCommissioner’s order dated 24.12.1975.

10. The learned District Judge took note of the following pedigreetable of the parties:

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11. Framing several issues on the basis of the pleadings of theparties, the learned Judge after considering the materials on record foundin favour of the plaintiff that he is the owner of 11 Kanals and 15 Marlasin Survey Nos. 1829 and 1838. This finding was based primarily on thecompromise dated 18.12.1975 between the plaintiff and Abdul Jalil Khanand accordingly a decree for possession of land was passed in favour ofthe plaintiff-respondent and against the defendants-appellants.

12. The Civil First Appeal No.117 of 2003 was then filed by theappellants and likewise Cross Appeal No.72 of 2004 was filed by therespondent assailing the District Judge order dated 31.7.2003 but thelearned Single Judge under his 24.9.2008 common order, dismissed bothappeals and thereby the decree/order dated 31.7.2003 came to be upheld.

13. Thereafter the appellants preferred the LPA No.174 of 2008and specifically questioned the jurisdiction of the DC to pass the24.12.1975 order by contending that the compromise dated 18.12.1975was a nullity. According to the appellants, their father late Sucha Singhthrough whom the plaintiff claims, was the owner of the subject landand unless the land owner transferred the land in favour of the plaintiff,through a valid registered instrument, the plaintiff can have no claimover the subject land. It was specifically contended that under Section49 of the Registration Act, 1908 and Section 138 of the Jammu &Kashmir Transfer of Property Act, 1920 which are applicable to theState, claim for title or of possession of immoveable property without aregistered instrument, cannot be entertained. Their say was that there isnothing on record that Sucha Singh had transferred any land to the plaintiffthrough a valid instrument. On the compromise, which was the basis for A

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Aplaintiff’s claim, the appellants projected that in terms of Section 3 of theSuspension Act, 1975, the operation of the concerned provisions of the1972 Act and all proceedings thereunder, remained in suspension until30.3.1976 and therefore the 18.12.1975 compromise and the DC’s orderdated 24.12.1975 for correction of revenue records based on thecompromise are non-est as the same was passed while the 1972 ActBwas under suspension.

14. Having considered the rival projections, the High Courtobserved that the only question which requires determination in the appealis, what is the effect of the compromise. To give the answer, the Courtnoted that the certified copy of the compromise does not disclose thatCthe same was in connection with a proceeding initiated for resumptionof land but noted that the same related to correction of revenue records.According to the Court the plaintiff being an Army personnel, was in abetter position to resume the land which was under the tenancy of AbdulJalil Khan and therefore the plaintiff was authorized to launch theDproceeding and enter into compromise with the tenant Abdul Jalil Khan.The Division Bench also noted that the owner of the land Sucha Singhhad acknowledged the compromise deed which recorded the respectiveownership of the tenant Abdul Jalil Khan and the plaintiff, for theconcerned portions of the land of Sucha Singh. On the issue of the transferof land being without a registered document, the Court observed that theEinstrument of compromise where a tenant accepts that his landlord is inpossession of certain land over which the tenant makes no claim andsurrenders his tenancy, would not require registration. The plaintiff’sright on the concerned land is also recognized by the Sucha Singh throughhis endorsement. Moreover, since the appellants had not taken steps to Fappropriately challenge the 18.12.1975 compromise within the period oflimitation, the title of the plaintiff stood perfected. The appeal accordinglywas dismissed under the impugned judgment.

15. We have heard Mr. Huzefa A. Ahmadi, learned Senior Counselappearing for the appellants. Mr. S.N.Bhat, learned Senior CounselGappears for the respondent (plaintiff).

16.1 Explaining the implications of the thumb impression of lateSucha Singh on the compromise deed, Mr. Ahmadi, learned SeniorCounsel submits that the same related only to the internal arrangementregarding the tenancy of Jalil Khan and does not in any way transferHany right of ownership to the plaintiff. According to the counsel the endorsement “I accept the compromise” does not in any manner suggestthat Sucha Singh had intended to confer title of his land to the plaintiff.

16.2 Focusing on the appellants’ challenge to the compromise,Mr. Ahmadi, learned Senior Counsel submits that the compromise wasentered in a proceeding for correction of revenue records and the samemust therefore be understood in that context. Adverting to the widedefinition of “owner” and “personal cultivation” under Section 2 (6)and Section 2 (7) respectively under the 1972 Act, it is argued that thedefinition is wide and includes persons claiming through the legal ownerand also “adopted sons” of the owner. Accordingly, it is argued thatacceptance of the plaintiff as an owner, does not imply that Sucha Singhhad intended to transfer his ownership right in favour of the plaintiff.Projecting the limited power of the Circle Officer which was confinedto compiling and correcting revenue records as they existed on the cutoffdate 1.9.1971, it is submitted that the compromise in the revenuecorrection proceedings under Chapter III of the Rules, can only relate torevenue records and to possession of land in capacity as personalcultivator. It is therefore argued that the compromise cannot and doesnot confer title on the plaintiff.

16.3 Highlighting the requirement of mandatory registration underSection 17 of the Registration Act, 1977, it is next argued that thecompromise does not comply with the mandate of law and since title isclaimed by the plaintiff only on the strength of compromise, the samecould not have been granted. The learned senior counsel has relied onBhoop Singh v. Ram Singh Major[1]to argue that the law requiresregistration of compromise order which creates rights, title or interest inimmovable property. The ratio in K. Raghunandan & Ors. v. AliHussain Sabir & Ors.[2] is also cited by the counsel to point out that theCourt has held that since the plaintiff claims title from the compromisedeed, as distinguished from recognition of pre-existing rights, the samewould necessarily require registration. The judgment in Phool Patti v.Ram Singh[3]is also pressed home by the counsel to buttress his argument.Appellants question how legal title can be secured on the strength of thecompromise arrived at in the proceedings initiated by the tenant JalilKhan which arose from a change in the entry in the records, during the 1 (1995) 5 SCC 709

2 (2008) 13 SCC 102

3 (2015) 3 SCC 465

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Aprocess of verification under the 1972 Act. The document in question inany case is required to be registered, in terms of Section 49 of theRegistration Act and Section 138 of the Jammu & Kashmir Transferof Property Act and the submission of Mr. Ahmadi is that without suchregistration, the title rights for the plaintiff do not get crystalized.

B16.4 Adverting to the provisions of Section 17 (2) (vi) of theRegistration 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 tobe registered as the compromise was in consequence of revenueproceeding and not by a competent Court. Since the DC’s order wasbased on the compromise which also dealt with 6 Kanals land formingCpart of Survey Nos.1829 and 1838 which was declared in favour of thetenant Jalil Khan, it is argued by Mr. Ahmadi that since the suit of theplaintiff is not restricted only to the 11 Kanals and 15 Marlas claimed byhim, the DC’s order endorsing the compromise would require registration,in order to legally recognize plaintiff’s title, on the strength of these twoDdocuments.

16.5 According to the appellants, the DC’s order is of no legaleffect as the same was passed while the 1972 Act was under suspensionand during that period the authority lacked jurisdiction to exercise powersunder the 1972 Act. The 1972 Act remained under suspension duringE25.3.1975 to 30.3.1976 and it is during this phase, the 18.12.1975compromise was re-recorded. As such the compromise and the DC’s24.12.1975 order were at a time when the suspended Act was operating.Therefore, it is argued that the DC/Collector lacked jurisdiction andauthority to entertain the appeal. In such a situation, the consent of theparties to the lis can have no implication as the Authority lackedFjurisdiction by virtue of suspension of the 1972 Act. In support of hiscontention Mr. Ahmadi, learned Senior Counsel relied on Ajudh Raj v.Moti[4], “5. The principle for deciding the question of limitationin a suit filed after an adverse order under a Special Act isGwell settled. If the order impugned in the suit is such that ithas to be set aside before any relief can be granted to theplaintiff the provisions of Article 100 will be attracted and ifno particular article of the Limitation Act is applicable thesuit must be governed by the residuary Article 113, prescribing H4 (1991) 3 SCC 136

S. KULDEEP SINGH & ANR. v. S. PRITHPAL SINGH[HRISHIKESH ROY, J.]

a period of three years. Therefore, in a suit for title to animmovable property which has been the subject matter of aproceeding under a Special Act if an adverse order comes inthe way of the success of the plaintiff, he must get it clearedbefore proceeding further. On the other hand if the order hasbeen passed without jurisdiction, the same can be ignored asnullity, that is, non-existent in the eye of law and it is notnecessary to set it aside; and such a suit will be covered byArticle 65. In the present case the controversial facts havebeen decided in favour of the plaintiff-appellant and thefindings were not challenged before the High Court. Theposition, thus, is that the plaintiff was the owner in cultivatingpossession of the land and the defendant Moti was merely alabourer without any right of a tenant or a sub-tenant. Thequestion is as to whether in this background it is necessary toset aside the order passed in favour of the respondent underSection 27(4) of the Act before the suit can be decreed orwhether the plaintiff can get a decree ignoring the said orderas void, in which case the suit undoubtedly will be governedby Article 65.”

The learned senior counsel further relied on Mohammad Ansariv. Union of India & Ors[5]., “35. At this stage, it is necessary to recapitulate thatduring the pendency of the matter before the High Court, theCentral Administrative Tribunal had passed the final orderon 5-11-2012 in favour of the appellant. Be that as it may,the Tribunal does not have the jurisdiction to deal with anissue of upgradation or the nature of lis raised by the appellantbefore it. In the absence of lack of inherent jurisdiction todeal with the issue, the said judgment is a nullity. It has noexistence in law. It is well settled in law that the judgmentpassed is a nullity if it is passed by a court having no inherentjurisdiction. The decree to be called a nullity is to beunderstood in the sense that it is ultra vires the powers of thecourt passing the decree and not merely voidable decree.(See Hiralal Moolchand Doshi v. Barot Raman Lal AB

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ARanchhoddas [Hiralal Moolchand Doshi v. Barot Raman LalRanchhoddas, (1993) 2 SCC 458].”

16.6 The appellants next contend that the subject matter of thecompromise is Orchard land which, under Section 2(4) of the 1972 Act,stood excluded from the definition of land and therefore neither the tenantBJalil Khan nor the plaintiff, could claim any title over such Orchard land.It is therefore argued that the 1972 Act did not allow for any privateagreements in furtherance of which, any compromise could be entered.

16.7 On the finding against the defendants that they had notchallenged the compromise and therefore the rights over the land for theCplaintiff stood crystalized is contended to be an untenable position oflaw. The decree according to the appellants is a legal nullity as the authoritylacked jurisdiction to pass any such order. It is therefore argued that thesame can be set aside even in collateral proceedings and the compromisewould not obliterate any lawful right of the landowner Sucha Singh, overhis own land.D

17.1 Per contra, Mr. S.N. Bhat, the learned Senior Counsel forthe respondent (plaintiff) would firstly submit that since the appeal arisesout of the concurrent findings of three courts which decreed the suitdeclaring title and possession in favour of the plaintiff, this Court inexercising power under Article 136, should not upset those findings.EFurthermore, in the facts of the present case, this Court should notinterfere. It is submitted that the respondent as adopted son would getonly 11 Kanals & 15 Marlas. (The appellant has a case that respondenthad other properties). This in turn is disputed by the respondent.

17.2 According to the respondent, the right over the land in questionFis declared on the basis of the 18.12.1975 compromise and the DC’sendorsement and since Sucha Singh the landowner had appended histhumb impression on the compromise, the ownership of the plaintiff isacknowledged. Thus, plaintiff’s title was rightly protected by the courts.According to Mr. Bhat, the parties to the transaction clearly understoodGthe purport of the compromise and as such confusion must not be createdon the issue by adverting to the definition of “owner” under the 1972Act. It is further submitted that the Sucha Singh by making his endorsementon the compromise obviously intended to give and recognize the right ofthe plaintiff over the subject land and his act cannot be seen through thedefinition of “owner” under the 1972 Act.H

17.3 On the issue of DC’s order dated 24.12.1975 being non estand void for having been passed during the operation of SuspensionAct, 1975, the respondent argues that such a contention was raised forthe first time in the LPA before the Division Bench of the High Courtand since that issue was not raised by the defendants either before theTrial Court or the First Appellate Court, the Division Bench rightly heldthat the appellants are disentitled to raise such contention. It is furtherpointed out that the Suspension Act, 1975 did not suspend all proceedingsunder the 1972 Act in its entirety and certain proceedings were keptalive under Section 4 of the Suspension Act, 1975. Therefore, unlessthe exact nature of the proceedings initiated before the Circle Officer isbrought forth, it cannot be said that Suspended Act, 1975 applies to thecompromise and the proceedings before the Deputy Commissioner. Sincegreat prejudice was caused to the respondent-plaintiff by permitting theappellants to raise such contention for the first time in the LPAproceedings, Mr. Bhat, learned senior counsel places reliance on Sitabai& Anr. v. Ramachandra[6] and Om Prakash & Ors. v. R.K. Kalra[7].

17.4 The plea of estoppel against the appellants is also pressedhome by the senior counsel by projecting that the admission of ownershipof the respondent-plaintiff was made by Sucha Singh in the compromiseand the same being accepted by the DC, the appellants as the legal heirsof Sucha Singh are estopped from raising such contention.

17.5 According to Mr. Bhat, the appellants are wrong in sayingthat the compromise and the DC’s order would require registration. Thecounsel further argues that the transaction is essentially within the familyof Sucha Singh and the respondent herein being the adopted son of SuchaSingh, the transaction should be construed as a family transaction, and itwould be an exception to the principles governing transaction amongststrangers. Therefore, placing reliance on Kale and others vs. DeputyDirector of Consolidation and others[8], Ram Charan Das vs. GirijaNandini Devi and others[9], Maturi Pullaiah and another vs. MaturiNarasimham and others[10], Mr. Bhat argues that the principles of estoppeland equity will apply against the appellant on their insistence of formalities 6 AIR 1970 343

7 (1988) 4 SCC 705

8 (1976) 3 SCC 119

9 AIR 1966 SC 323

10 AIR 1966 SC 1836

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Alike registration for what is nothing but a family arrangement. In order toexplain the principles of estoppel in transactions involving families, Mr.Bhat relies on K. C. Kappor vs. Smt. Radhika Devi (dead) by Lrs.and others[11], Mehaboob Sahab vs. Syed Ismail and others[12],Bhagwan Krishan Gupta (d) vs. Prabha Gupta and others[13],Ganeshi (Dead) Through Lrs. and others vs. Ashok and Another[14]Band Ajambi (Dead) by legal representative vs. Roshanbi and others[15].

Findings

A. Whether the compromise dated 18.12.1975 confers title?

18. In order to adjudicate the above issue, we need to look at theCcompromise in its intent and functioning. The compromise between thePlaintiff and Abdul Jalil Khan (tenant) was recorded in a proceeding forcorrection of revenue records under the 1972 Act and the Rules. There,the Plaintiff was admitted to be the owner and in possession of landwhich he personally cultivated. Sucha Singh with his thumb impressionDendorsed the compromise deed. On this the defendants have contendedthat the said statement has to be read in the context in which it wasmade and how the parties to the transaction understood the same. Theplaintiff says that his adoptive father Sucha Singh intended to confer titleon the Plaintiff and Sucha Singh would not have looked into the definitionof “owner” under the 1972 Act, before making the endorsement on theEcompromise. On this, it cannot be ignored that the parties effectuatedthe transaction in a proceeding under the 1972 Act. Thus, the compromiseexists within the four corners of the 1972 Act, and must therefore beread by applying the statutory provisions.

19. Proceeding further, the definitions of ‘owner’ and ‘personalFcultivation’ under Ss. 2(6) and (7) respectively of the 1972 Act areexpansive. The definition of owner is an inclusive one. It includes notonly the legal owner/proprietor, but also person claiming through thelegal owner. Specifically, the ‘adopted sons’ of the owner. Hence, thepurpose of the compromise decree in the correction proceedings underGChapter III of the Rules pertain only to revenue entries, and the 11 (1981) 4 SCC 48712 (1995) 3 SCC 69313 (2009) 11 SCC 3314 (2011) 15 SCC 417H15 (2017) 11 SCC 544

S. KULDEEP SINGH & ANR. v. S. PRITHPAL SINGH[HRISHIKESH ROY, J.]

possession of land in capacity of a personal cultivator. This could hardlyconfer any lawful title on the plaintiff over Sucha Singh’s land.

20. The power under the 1973 Rules confers limited power to thecircle officer’s and it is confined to verifying, amending, and authenticatingrevenue records as they existed on the cutoff date i.e., 1[st] September,1971. Thus, it is clear that a mere affirmation in the context of revenuerecords and personal cultivation rights cannot be interpreted as anintention of Sucha Singh to confer title upon the Plaintiff. With hisendorsement on the compromise, Sucha Singh perhaps intended to givethe right of personal cultivation but the same does not in any mannersuggest that Sucha Singh had intended to confer title on the plaintiff.

21. It is also important to note that Plaintiff in his own testimony(led before Trial Court, and recorded in the Trial Court judgment) hadstated that Sucha Singh prepared “orchards”. Albeit, by using the salaryof Plaintiff. The land is therefore of the orchard category. In this situation,the land which is the subject matter of the Compromise being an Orchardstood excluded from the definition of land under S. 2(4) of the 1972 Act.As such, the title for such category of land could not vest with the Plaintiff.This determination of fact is essential to adjudicate the title and the issuewas definitely raised in the LPA proceeding before the High Court, apartfrom being raised in the lower court also. In such a situation this Court isrequired to keep the ‘orchard’ aspect in mind and also address theimplication of the same on the contesting parties. The upshot of theabove persuade us to hold that the compromise (18.12.1975) does notconvey any lawful title on the Plaintiff.

B. Did the compromise require registration?

22. It is contended by the defendants that the compromise did notcomply with Section 17 of the Registration Act, 1977 which mandatescompulsory registration, and without a registered document, no title orclaim or possession can fructify. On the other hand, Plaintiff has arguedthat the transaction is essentially within the family of Sucha Singh sinceplaintiff is the adopted son of Sucha Singh. The transaction of the presentnature belongs to a different class, and thus, the normal principlesgoverning transaction among strangers, do not apply to this class oftransactions.

23. We are however unable to see the compromise as a kind of‘family arrangement’. The compromise was not amongst family members A

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Abut between the plaintiff and the tenant – Jalil Khan (not a family member).The statement of Sucha Singh “I accept the compromise”, is only withregard to the internal arrangement regarding the tenancy of Jalil Khan,and this will not make it a family arrangement. Moreover, the plea thatcompromise is a “Family Arrangement” is raised for the first time beforethis Court. The Plaintiff significantly had waived his claim to other assetsBleft 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 acontention for the first time before this Court. Even otherwise, Jalil Khanwas not a family member. Thus, he could not have been a party to a socalled “family arrangement”. Besides, none of the other family membersCwere parties to the said compromise either. Therefore, the documentsin question would require registration and it cannot be treated as a familyarrangement.

24. It is pertinent to note that the ownership claim for the plaintiffis founded only on the compromise and the respondent is not claimingDany antecedent title. The issue whether the compromise decree betweenparties to a suit proceeding, could vest or transfer title to one of them,was decided in Bhoop Singh v. Ram Singh Major [supra], where therequirement of registration of such compromise order which create newrights, title, or interest, was upheld in the following manner: - E“18. The legal position qua clause (vi) can, on the basis ofthe aforesaid discussion, be summarised as below:

(1) Compromise decree if bona fide, in the sense that thecompromise is not a device to obviate payment of stamp dutyand frustrate the law relating to registration, would not requireFregistration. In a converse situation, it would requireregistration.

(2) If the compromise decree were to create for the firsttime right, title or interest in immovable property of the valueof Rs 100 or upwards in favour of any party to the suit theGdecree or order would require registration.

(3) If the decree were not to attract any of the clauses of sub-section (1) of Section 17, as was the position in the aforesaidPrivy Council and this Court’s cases, it is apparent that thedecree would not require registration.

H

(4) If the decree were not to embody the terms of compromise,as was the position in Lahore case, benefit from the terms ofcompromise cannot be derived, even if a suit were to bedisposed of because of the compromise in question.

(5) If the property dealt with by the decree be not the “subject-matter of the suit or proceeding”, clause (vi) of sub-section(2) would not operate, because of the amendment of this clauseby Act 21 of 1929, which has its origin in the aforesaiddecision of the Privy Council, according to which the originalclause would have been attracted, even if it were to encompassproperty not litigated.”

25. Further, in K. Raghundandan & Ors. vs. Ali Hussain Sabir& Ors. [supra], while referring to Bhoop Singh [supra], the Courtheld that consent terms creating rights/title or interest for the first time,as distinguished from recognition of a right, would require registration ifthe value of property is above Rs. 100. This was affirmed by a threeJudges bench in Phool Patti vs. Ram Singh [supra]. Lastly, inRipudaman Singh vs. Tikka Maheshwar Chand[16], this Court heldthat where there is no pre-existing right, but right has been created bythe compromise alone, such compromise creating new right, title orinterest in immovable property of value of Rs. 100 or above, is compulsorilyregistrable.

26. In the present case, the Appeal filed by the tenant – Jalil Khanarose from the change of the entry in the records during the process ofverification under the 1972 Act. It was in this Appeal that the compromisewas recorded and endorsed by the DC’s Order, recognizing thepossession of the Plaintiff for the very first time, as was also admittedby plaintiff in paragraph 6 of the Suit. In circumstances of this kind, weare quite certain that the compromise was required to be registered,under Section 49 of the Registration Act, 1977 and also under Section138 of the J&K Transfer of Property Act. Without such registration notitle 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 ofa Court proceeding. That being the case, the compromise did not fallunder the exception category under Section 17(2)(vi) of Registration A

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AAct, 1977 (as applicable to then State of J&K). The above makes itabundantly clear that the compromise in order to have legal effect neededregistration under the Registration Act, 1977.

28. Significantly, the DC’s 24.12.1975 order based on theCompromise, also dealt with 6 Kanals land forming part of Survey No.B1829 & 1838 which went to the ownership of the tenant - Jalil Khan.The subject compromise or the DC’s order was not restricted only to 11Kanals and 15 Marlas as claimed by the Plaintiff. These circumstanceswould imply that the compromise required registration for it to be of anylegal effect. Since title is claimed, and the plaintiff founded his entirecase on the compromise, it would necessarily require registration.CAccordingly, question B is answered in affirmative.

29. The defendants have also unsuccessfully argued before theHigh Court that the jurisdiction of the Deputy Commissioner to exercisepowers under the J&K Agrarian Reforms Act, 1972 stood suspendedon the date of passing the Compromise Decree. Such a question of lawDhas a material bearing on this litigation and the same needs to beconsidered. The 1972 Act as noted earlier, was suspended during25.03.1975 to 30.03.1976 and during this period the Compromise wasrecorded on 18.12.1975 and the 24.12.1975 Order was passed by theDC. The power exercised for these orders are traceable to the suspendedEprovisions of the Act. Of course, the J&K Agrarian Reforms(Suspension of Operations) Act, 1975 did have a proviso which createdexceptions for certain sections of the 1972 Act. The relevant part of theproviso reads thus; “4. Certain provisions of Act No. XXCI not suspended for theFtime being- (1) The provisions of Sections 15, 25, 26, 27, 28,and 51 and the provisions of Chapter V of the principal Actin so far as they relate to these sections and any rules,notifications, orders and instructions issued thereunderincluding any proceedings instituted or actions taken underthe said provisions and pending on the date of commencementGof this Act, shall be continued and enforced as heretofore:…”

30. The above makes it clear that this case is outside the ambit ofany of the exempted sections such as Section 15 (Prohibition on transferof land), 25 (levy of annual tax), 27 (collection of tax), 28 (Determinationof ques-levy of tax related), 51 (repeal & savings) of the 1972 Act. OnlyH

such provisions of Chapter V which were relatable to the aforesaidprovisions were relevant, and not all sections were within the ambit ofexception. Section 31 of the 1972 Act which provided for Appeals andRevisions, was not protected by Section 4 of the Suspension Act, 1975.Thus, the DC, in our mind lacked inherent jurisdiction to either entertainthe appeal or endorse the compromise during the suspended phase. Incases where the authority lacked jurisdiction under a special Act and yetexercises powers, without authority of law, any order or decree so passedthrough such unlawful exercise of power, will be a legal nullity. Thedeficiency of jurisdiction of the authority cannot be cured by the consentof the parties. The challenge to such an incompetent order could be setup wherever it is sought to be enforced or relied upon, even in executionor in collateral proceedings[17]. Accordingly answering in favour of thedefendants, the DC’s order in our opinion can have no legal effect as thesame was passed during the operation of Suspension Act, 1975. Wehave found that the compromise being unregistered cannot confer titleon the respondent.

31. The final issue for our consideration is whether estoppelprinciple would apply against the defendants in their challenge to DCsorder. Equity as we know follows the law, and whenever there is aconflict between law and equity, it is the law which must prevail. Herethe Latin maxim “dura lex sed lex”, which means “the law is hard, but itis the law” would apply. Equity can only supplement the law, but it cannotsupplant or override it[18], and this would have a bearing against therespondent.

32. The records in the case show that Sucha Singh, during his lifetime, had cancelled the two Wills in favour of the plaintiff. This indicatesthat Sucha Singh was not interested to give any part of his property tothe plaintiff. Even otherwise, the suit property is self-acquired propertyof Sucha Singh, and a donee cannot claim equity in respect of the disposalof self-acquired properties, by a donor. Equity is all about balancing thecompeting interests and due weightage must be given to the fact that theappellants have been in possession and was nurturing their father’s landfor over four decades and the estoppel principle propounded againstthem by the respondent must give way to the law set out by the statute[19].

17 (1991) 3 SCC 136, Para. 5 | (2017) 3 SCC 740, Para. 35

18 (2007) 2 SCC 230, Para. 29

19 (2021) 3 SCC 401

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33. Notwithstanding the concurrent finding against them, in a caselike this, where the law leans in appellant’s favour, the Court has toexercise corrective jurisdiction as the circumstances justify. As such,taking a cue from Haryana State Industrial Development Corporationvs. Cork Manufacturing Co[20]., the exercise of extraordinary jurisdictionunder Article 136 is found to be merited in this matter.

34. Proceeding accordingly, the decree in favour of the respondent(Plaintiff) in respect of the land measuring 11 Kanals and 15 Marlasfalling within the survey nos.1829 and 1838 situated at Ranbirpora,Anantnag, are set aside. The Appeal stands allowed by leaving the partiesto bear their own cost.

Ankit Gyan

Appeal allowed.

(Assisted by : Aarsh Choudhary, LCRA)