JUDGMENT
S.K. Jha, J.
1. The defendant is the appellant before this Court against a judgment of reversal. The trial court had dismissed the respondent’s suit which has been decreed in appeal by the Lower Appellate Court. The respondent instituted the present title suit for declaration of his title and recovery of possession with regard to survey Plot No. 965, Khata No. 211 corresponding to the revisional survey Plot. No. 344, which is a part of Ranchi town within the municipal area bearing originally municipal holding No. 970, which was converted into holding No 1130 at the tune when the suit was filed.
2. According to the plaintiff’s case, the land in question originally was the raiyati holding of one Silas Oraon, and one Gulam Rasul was the landlord of the tauzi in question. It may be stated here that tenancy in such cases was governed by the provisions of the Chota Nagpur Tenancy Act, 1908. It is alleged that by a registered deed dated 3rd December, 1940, Silas Oraon aforesaid surrendered the holding to Gulam Rasool, This registered surrender deed is Exhibit 4 On the record. Two days later, it is asserted, on 5th December, 1940, Gulam Rasul executed a registered patta (Ext. 5) making a permanent Chhaparbandi lease in favour of the plaintiff for a consideration of Rs. 400/-. The defendant was alleged to be a monthly tenant inducted on the premises in question by the plaintiff at a monthly rent of Rs. 10/-. The plaintiff instituted on an earlier occasion Title Suit No. 80 of 1963 in the court of Munsif, Ranchi, for eviction of the present appellant from this very plot of land. In that suit the appellant denied the relationship of landlord and tenant between the parties and claimed to be in possession of the property in his own right as an owner. Certain title was set up and pleaded in defence in that suit. The learned Munsif who heard the suit held that the question of title was alien to that suit since it was a suit for eviction under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. It was further found that the plaintiff had not been able to establish the relationship of landlord and tenant between the parties, and the suit was accordingly dismissed by a judgment and decree dated 13th Janu-any, 1964, Against that iudgment and decree the plaintiff preferred an appeal, being Title Appeal No. 14 of 1964 before the Judicial Commissioner, Ranchi, which was ultimately heard by the 4th Additional Judicial Commissioner. At the final hearing of that appeal a consent decree was passed in these terms on 12th January 1965:
“Both the counsel are agreed that the question of title and possession of the plaintiff to the house be set aside and be left open for future adujdication and the appeal be dismissed and the plaintiff be at liberty to file a fresh suit. The question of title and possession of the plaintiff over the suit house is left open and the appeal is dismissed on the consent of the parties and the costs of the appeal would be borne by the parties.”
Thereafter, the plaintiff has instituted the present suit, alleging that the defendant was his tenant who had been requested to vacate the premises and he had also sent a notice dated 8th March, 1965, under Section 106 of the Transfer of Property Act by registered post, terminating the tenancy immediately after the expiry of 31st March. 1965. But, it is alleged, the defendant had refused to accepted the said notice. In paragraph 9 of the plaint it was asserted that the plaintiff was entitled to get a declaration of title, and recovery of possession after evicting the defendant. The cause of action for the suit is said to have arisen on 8th March, 1965, the date on which the notice was alleged to have been sent, and thereafter on 1st April, 1965, when the defendant failed to vacate the premises.
3. The defence of the appellant was, inter alia, that the suit was barred by limitation: the plaintiff had no subsisting title or possession over the suit property; the suit was barred by the principles of res judicata; the story of surrender and settlement pleaded by the plaintiff was wrong, as no question could arise with regard to surrender of a municipal holding, nor was there any provision of law as such. There was no lease as alleged, nor could the document alleged to be the lease be treated as a lease at all. The appellant further denied the relationship of landlord and tenant and that he was in permissive possession over the land in suit. The question of serving a notice under Section 106 of the Transfer of Property Act did not arise as the defendant was never a tenant under the plaintiff. The defendant further set up his own title and claimed to have been coming in possession since 1936 under a title acquired not from Gulam Rasul but from another person alleged to be the owner of the plot in dispute. On these pleadings the trial Court held, on the relevant issues, that the previous decision being a consent decree would not operate as res judicata in the present suit. But it was held that the two deeds Exts. 4 and 5, being registered deeds of surrender and lease dated 3rd December, 1940 and 5th December, 1940. respectively, were actually parts of the same transaction. It was in fact a sale by Silas Oraon to the plaintiff, and a colour of surrender and subsequent settlement was given to it merely in order to defeat the provisions of and to get over the bar imposed by Section 46 of the Chota Nagpur Tenancy Act. It was further held that Ext. 5 being a registered patta and signed by Gulam Rasul alone could not confer any valid title on the plaintiff, as it was in contravention of the provisions of Section 107 of the Transfer of Property Act. The trial court further held that although the title pleaded and set up by the defendant appellant had not been proved, the defendant was in possession of the land in suit since 1936 or at least from 1948, but not as a tenant of the plaintiff. On these findings the trial Court dismissed the plaintiff’s suit.
4. On appeal by the plaintiff, the Lower Appellate Court held, there could be no question of res iudicata as the previous decree was a consent decree. Therefore, the question of relationship of landlord and tenant between the parties could be gone into in the present suit. The trial Court’s finding that the defendant had not been able to prove the title set up by him was also affirmed by the Lower Appellate Court. It was, however, held that the deeds of surrender and settlement could not be said to be hit by the provisions of Section 46 of the Chota Nagpur Tenancy Act, as the plaintiff was not proved to be a party to the fraud. It was further held that although Ext. 5, the deed of lease, did not confer any valid title on the plaintiff for being in contravention of Section 107 of the Transfer of Property Act. yet the plaintiff’s title must be held to have been proved on account of the doctrine of part performance laid down in Section 53-A of the Transfer of Property Act. The defendant was held to be in possession as a tenant under the plaintiff from 1952 or thereabouts. The final conclusion which the Lower Appellate Court drew may be expressed in its own language-
“Therefore, there is no reason to hold that the defendant is not a tenant of the plaintiff in respect of the suit house. Hence, I hold that the plaintiff has proved his possession through the defendant from 1952 till today”,
and then-
"............ the plaintiff is certainly entitled to the recovery of possession of the disputed house." On these findings the plaintiff's suit was decreed. 5. Mr. Rama Kant Verma appearing for the appellant urged a number of points in support of this appeal:
(i) The surrender and settlement were evidently parts of the same transaction. The real transaction was one of sale, and a colour of surrender and settlement was given to it merely in order to defeat the provisions of the Chota Nagpur Tenancy Act. In fact, Ext. 5 (the deed of lease) itself shows, as is quoted in paragraph 47 of the Lower Appellate Court judgment that “the entire consideration was realised as follows Rupees 300/- was given to Silas Oraon as consideration for the surrender and today the executive (Landlord) got Rs. 100 in cash”.
(ii) In any event, the plaintiff had not been able to prove his title since the document purporting to be the deed of lease (Ext. 5) was clearly invalid, as it was not signed by the plaintiff.
(iii) The doctrine of part performance embodied in Section 53-A of the Transfer of Property Act would not create or confer any valid title in favour of or on the plaintiff.
(iv) Although the consent decree in the previous suit may not operate as res judicata under Section 11 of the Code of Civil Procedure, it will certainly operate as estoppel, precluding the plaintiff to re-agitate the question regarding the relationship of landlord and tenant between himself and the appellant.
And (v) The finding on the question of possession as well as on the question of relationship of landlord and tenant was perverse.
6. I shall now deal with the points urged by learned counsel. As has already been stated above, the deed of surrender by Silas Oraon in favour of Gulam Rasul was executed on account of the plaintiff having paid to the aforesaid raiyat Silas Oraon a sum of Rupees 300 as consideration for executing the deed of surrender. This fact is established by the portion of the recital already quoted above from Ext. 5. It is curious to note that any consideration should be paid to a raiyat by a third party for making a surrender of his raiyati holding to his landlord. Evidently, therefore, it was merely a circuitous way of getting the transfer from the original raiyat Silas Oraon indirectly through surrender to the landlord and then taking the so-called deed of lease from the landlord. Section 46 of the Chota Nagpur Tenancy Act puts a bar to the transferability by a raiyat of his right in his holding or any portion thereof by sale, gift or any other contract or agreement or by mortgage or lease, except in certain circumstances and subject to certain limitations with which we are not concerned. It was admitted by learned counsel appearing for both the parties that a sale in the present case by Silas Oraon of his right in the holding in question would be hit by the provisions of Section 46. I have not the slightest hesitation in accepting as valid in law the finding of the trial court that the present transaction was a pure and simple sale, although a colour was given to it of a surrender and then settlement. The lower appellate court, on a misapprehension of law, has come to the conclusion that since the plaintiff was not a party to the deed of surrender, no fraudulent motive could be attributed to him. As will be noticed from the facts stated above, it was the plaintiff himself who had paid a sum of Rs. 300 to Silas Oraon for the purpose of the so-called surrender. It is well-settled that the consideration or object of an agreement is illegal if it is forbidden by Law or is of such nature that, if permitted, it would defeat the provisions of any law, and every agreement of which the object or consideration is unlawful is void. The policy of the Act is not to be defeated by any ingenious devices, arrangements or agreements between a vendor and a vendee. All such devices, arrangements and agreements, in contravention of the policy of the Act and being contrary to law, are illegal and void and cannot be enforced by the vendee in any court. Reference in this connection may be made to Section 23 of the Contract Act, a decision of the Judicial Committee of the Privy Council in Moti Chand v.
Ikram Ullah Khan (44 Ind App 54) and a Bench decision of this Court in Lakhia Singh Patra v. Jotilal Aditya Deo (AIR
1968 Pat 160). It must, therefore, be held that the documents purporting to be the deeds of surrender and lease were void, and the plaintiff respondent cannot derive any title from Ext. 5.
7. It needs little argument to persuade me to hold that even if it be held that in effect Ext. 5 was a deed of lease, it would still be invalid and cannot confer any title on the plaintiff since, it being a registered document, it was imperative for both the parties to have signed it in order to create a valid lease under Section 107 of the Transfer of Property Act.
8. This then brings us to the next question as to whether the finding of the lower appellate court regarding the conferment of the title or the saving of it in so far as the plaintiff respondent is concerned can be said to be protected by Section 53-A of the Transfer of Property Act. The lower appellate court in paragraph 69 of the judgment has observed as follows :
“In the present case this Ext. 5 is invalid as the lessee did not execute it. Therefore, it would not confer any title vide AIR 1947 Pat 78. But we have got authority for the proposition that such a lease would confer title if accompanied with delivery of possession under the doctrine of part performance as laid down under Section 53-A of the T. P. Act.”
This observation and the finding of title on the doctrine of part performance in favour of the plaintiff in the instant case are wholly erroneous in law. The right conferred by Section 53-A is a right available only to the defendant to protect his possession. The section is so framed as to impose a statutory bar on the transferor, but it confers no active title on the transferee. It is in that sense that it has been said that the principle embodied in Section 53-A can be permitted to be used only as a shield when action, is brought by the transferor as against the transferee but not as a sword to defeat a stranger in possession on the strength of title and possession in part performance thereof. This section is only available as a defence to the lessee, but does not give any right to him to claim possession or to claim any other rights on the basis of an invalid lease. Reliance for these propositions may be placed on a decision of the Judicial Committee of the Privy Council in Probodh Kumar Das v. Dantmara Tea Co. Ltd. (AIR 1940 PC 1) and that of the Supreme Court in Delhi Motor Co. v. U. A. Basrurkar (AIR 1968 SC 794). It is clear, therefore, that in any view of the matter the plaintiff respondent in the present case has not been able to establish his title as pleaded. Mr. Shree Nath Singh, learned counsel appearing for the respondent, contended that since the landlord, Gulam Rasul, could not seek to evict the respondent from the premises in question, if he were in possession of it in part performance of an agreement, then nobody else could so challenge the title of the plaintiff. This is a submission stated merely to be rejected. Apart from what I have said above, in the present case, admittedly, the plaintiff is not in possession and seeks to recover possession on the strength of his title. It is true, as has been concurrently held by both the courts below, that the appellant has also not been able to prove or establish any title as pleaded or even any semblance of title; all the same, he being admittedly in possession, can be dispossessed by the respondent only if the latter succeeds in establishing his own title. It is well settled that in suits for possession based on title the plaintiff must stand or fall on the strength of his own title. Reference in this connection may be made to the cases of Mohima Chundar Mozoomdar v. Mohesh Chundar Neogi (16 Ind APP 23 at p. 26) and Rambhusan Das v. Anand Das (AIR 1946 PC 140).
9. The next question which falls for consideration is as to whether, on the materials on record and from the discussion of the evidence by the courts below, it can be said in the instant case that the respondent is estopped by his conduct from re-agitating the question regarding the relationship of landlord and tenant between himself and the appellant. In order to appreciate the submission made by learned counsel for the appellant, certain admitted facts may be noticed here which appear from paragraphs 16 to 19 of the judgment of the lower appellate court. While deciding the previous Title Suit No. 80 of 1963, the trial court recorded a finding on issue No. 2 of that suit whether there was relationship of landlord and tenant between the parties or not. In that connection it was held:
“The defendant’s possession over the house in question will at least be deemed to be that of a trespasser under a wrong claim but for evicting a trespasser, the plaintiff’s remedy is elsewhere and not under the B. B. C. Act, 1947.”
It was further held:
"This is not a suit for any declaration of title and for recovery of possession. So in the absence of relationship of landlord and tenant a suit for the defendant's eviction under the B. B. C. Act would not lie...... Although the plaintiff's title to the suit holding is seriously disputed and the validity of the surrender and settlement (on which the plaintiff's title and possession is based) have also
been challenged, yet I am not inclined to give any direct finding on such issue since the same has not been framed for deciding such matters. In this suit for eviction the scope is very limited and I have nothing more to do than considering the relation of landlord and tenant. Therefore, leaving the question of title open I hold that there is no relation of landlord and tenant between the parties in respect of suit house for maintaining a suit for eviction. This issue is accordingly decided against the plaintiff.”
On this finding and on this chain of reasoning the plaintiff’s earlier suit was dismissed by the trial court, and it was in this context that when the matter was finally heard by the first appellate court in Title Appeal No. 14 of 1964 a consent decree was passed, whereby the question of title and possession of the plaintiff over the suit house was left open and the appeal was dismissed by the consent of the parties. As I correctly understand, the implication of such a consent decree, is this. The finding of the trial court in that suit was that there was no relationship of landlord and tenant between the parties and that, therefore, the suit under the Bihar Buildings (Lease, Rent and Eviction) Control Act was rightly dismissed. Such A decree of dismissal merged in the appellate court consent decree by which the appeal was dismissed. But merely in order to avoid any difficulty in any future litigation in which the plaintiff could seek to recover possession on the strength of his title as against the defendant qua trespasser, it was agreed between the parties that the question of title and possession of the plaintiff over the suit house be left open. Evidently, therefore, the only point that was left open for adjudication in any future litigation was the question of possession as against a trespasser on the basis or strength of the plaintiff’s title. This being the position in my view, the law is well-settled that the respondent could not be allowed to re-agitate the question of relationship of landlord and tenant between himself and the appellant in the present suit. A compromise decree, it is true, is not a decision of the court. It is the acceptance by the court of something to which the parties had agreed. It is in that sense that compromise or consent decrees have been described as contract between the parties to which is superimposed the command of the court. The court merely sets its seal on the agreement entered into between the parties. It is, therefore, not a decision of the court on an application of its mind and the statutory bar of res judicata under Section 11 of the Code of Civil Procedure is not attracted. But at the same time, it is equally well-established that a judgment by consent or default is as effective an estoppel between the parties as the judgment whereby the court exercises its mind on a contested case. Even though the matter may have passed from the staga of representation into an agreement, there are cases where the courts are entitled to entertain a plea of estoppel in order to prevent fraud or circuity of action. Reliance in this connection may be placed on the decisions of the Supreme Court in Sunderabai v. Devaii Shankar Deshpande (AIR 1954 SC 82), Sailendra Narayan Bhanja Deo v. The State of Orissa (AIR 1956 SC 346) and Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao (AIR 1967 SC 591). As a matter of fact, a Bench decision of the Calcutta High Court in Secretary of State for India in Council v. Ateendranath Das, (ILR 63 Cal 550 at p. 568) was approved by the Supreme Court in the case of Sailendra Narayan Bhanja Deo (AIR 1956 SC 346). The paragraph quoted with approval runs as follows:
“……… the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded.”
As I have already noticed above, the effect of the consent decree in the previous appeal was to affirm the finding of the trial court that there was no relationship of landlord and tenant between the parties but the plaintiff would be at liberty to resort to fresh legal action for recovery of possession as against a trespasser on the strength of his own title, Mr. Singh, learned counsel for the respondent, urged on the strength of the decision of the Supreme Court in (AIR 1967 SC 591) that such an estoppel must be specifically pleaded. No one can dispute the proposition of law, as baldly submitted by learned counsel. In the present case the plea of res judicata has only been taken in paragraph 3 of the written statement which reads as follows:–
“That the suit is barred by the principles of res judicata.”
The necessary facts for such a defence to be raised were already there in the plaint of the plaintiff set out in paragraphs 6 to 8 of the plaint regarding the institution of the previous suit, the decree of the trial court dismissing the suit and the consent order passed by the appellate court in that suit. In such view of the matter, all the necessary facts have been set up and canvassed before both the courts below by both the parties for the purpose of determining the question of res judicata. But if on such facts as are discussed in the judgments of both the
courts below, especially, the lower appellate court, it can be inferred in law that though the plea of res judicata was not entertainable in view of the consent decree, yet the plea of estoppel would arise in this case, I do not think that any technical objection of the nature which learned counsel for the respondent has raised should stand in our way in deciding this pure question of law indeed, no prejudice has been caused or can be said to have been caused to the respondent; this much was very fairly conceded by Mr. Shree Nath Singh. In this connection, I may repeat what the Supreme Court has laid down in the case of Raj Narain v. Smt. Indira Nehru Gandhi [(1972) 3 SCC 850 = (AIR 1972 SC 1302)]:–
“Rules of pleadings are intended as aids for a fair trial and for reaching a just decision; an action at law should not be equated with a game of chess.”
I would accordingly hold that it was not open to the plaintiff to raise the question of the relationship of landlord and tenant between him and the appellant in the present suit. It is also worth noticing in this case that as a matter of fact the parties had never intended at the trial that the question of relationship of landlord and tenant should be gone into, for none of the six issues framed in the suit by the trial court is in respect of that matter.
10. In the view that I have taken of the questions of law it is not necessary for me to decide as to whether the findings of the lower appellate court could be said to be perverse in so far as the question of the respondent’s possession through the appellant is concerned.
11. For the foregoing reasons I would hold that the respondent has not been able to prove his title at all and he cannot recover possession on the strength of title pleaded by him. In the result, therefore, this appeal is allowed, the judgment and decree of the lower appellate court are hereby set aside and those of the trial court restored and the plaintiffs suit is dismissed with costs throughout
S.N.P. Singh, A.C.J.
12. I agree.