JUDGMENT
Iqbal Singh, J.
1. This is defendants’ Regular Second Appeal against whom the suit filed by the plaintiffs for possession and permanent injunction in respect of the land in dispute has been decreed by both the Courts below. The following facts may be noticed:- The suit of the plaintiff-respondents is that Ratti Ram, their father, tried to alienate his property, on which they (plaintiff-respondent) filed Civil Suit No.697 of 1985 against him. In the said suit, a compromise was arrived at between the parties on 13.11.1985. According to the said compromise, Ratti Ram was given certain land. Thereafter, Ratti Ram gave the land in dispute to the defendant-appellants by way of judgment and decree dated 5.12.1985. It has been stated that the said Ratti Ram had no right to suffer the decree in favour of the defendant-appellants qua the suit land and therefore, the judgment and decree dated 5.12.1985 is illegal, null and void and not binding upon the rights of the plaintiff-respondents. The plaintiff-respondents, who are the daughters of late Ratti Ram, claim 3/4th share out of 15 Marlas of land.
2. In the written statement filed by the defendants-appellants, they took preliminary objections that the suit is not maintainable in the present from and that the same is false and frivolous and has been filed by concealing the true facts. On merits, it was admitted that a compromise, as alleged in the plaint, was arrived at between the parties in which Ratti Ram was given liberty to deal with 3 acres, 1 Kanal and 15 Marias of Land along with a ‘Bara’ in any manner. It was stated that the defendant-appellants had been serving Ratti Ram during his life time and on that account, he (Ratti Ram) gave the suit land along with other property to them by way of judgment and decree dated 5.12.1985. It has been further stated that mutation on the basis of the said decree has been sanctioned in favour of the defendants and that judgment and decree dated 5.13.1985 is legal and binding upon the parties.
3. On the pleadings of the parties, the trial Court framed the following issues besides that of relief: –
“1. Whether decreased Ratti Ram violated civil suit decree dated 13.11.1985 and so its effect? OPP.
2. Whether decree dated 5.12.1985 passed in favour of defendants is invalid, null and void qua the suit property? OPP
3. Whether deceased Ratti Ram according to the compromise Ex.C.1 was not competent to transfer the property in dispute in favour of defendants? OPP
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the plaintiffs have no locus standi to file the present suit? OPD
6. Whether the suit is under-valued for the purpose of Court fee and jurisdiction? OPD.
4. Issues Nos.1 to 3 were discussed together by the trial Court and answered in favour of the plaintiffs and against the defendants. Issue Nos.4 and 6 were not pressed by the learned counsel for the defendant-appellants before the trial Court and the same were accordingly decided against them (defendant-appellants) as not pressed. In view of its findings on the afore-mentioned issues, the trial Court decreed the suit of the plaintiff-respondents to the extent that they (plaintiff-respondents) were declared to be owners in joint possession with the defendants-appellant to the extent of 3/4th share of the land in dispute.
5. Aggrieved against the said judgment and decree passed by the trial Court, the defendant-appellant went in appeal before the lower appellate Court and the same was also dismissed.
6. I have heard Mr. S.K. Pipat, Senior Advocate, assisted by Mr. Bhag Singh, Advocate, on behalf of the appellants and Mr. Harbhagwan Singh, Senior Advocate, assisted by Mr. K.K. Saini, on behalf of the respondents, and have gone through the records of the case.
7. Both the Courts below have returned a concurrent finding of fact that the decree dated 5.12.1985 is illegal, null and avoid. The illegal decree cannot be made legal even if the same is not got set aside by any party. It is admitted case of the parties that Ratti Ram was owner of the suit property along with other land. In view of the compromise Exhibit P.2 arrived at between the parties in an earlier litigation, Ratti Ram was given a right to deal with land measuring 3 acres, 1 kanal and 15 Marlas along with one ‘Bara’ in any manner. The suit property given to Ratti Ram under compromise Exhibit P.2 has been transferred by him in favour of the defendant-appellants by way of judgment and decree dated 5.12.1985. The plaintiff-respondent, in the present suit, have only challenged transfer of a part of the land which was given to the defendant-appellants by Ratti Ram by way of judgment and decree dated 5.12.1985 and not the whole and. The defendant-appellants had no pre-existing right in the suit property and the same was created only for the first time by way of judgment and decree dated 5.12.1985. As the defendant-appellants had no pre-existing right in the suit property, the same could not be transferred in their favour by way of consent decree dated 5.12.1985, Therefore, the consent decree dated 5.12.1985 could not confer any right or title upon the defendant-appellants and the same is not binding upon the plaintiff-respondents. Moreover, the decree dated 5.12.1985 was compulsorily registerable as it created new rights in favour of defendant-appellants. In Bhoop Singh v. Ram Singh Major and Ors., (1996-1)112 P.L.R. 559 (S.C.), their lordships of the Apex Court summarised the legal position qua Clause (vi) of Section 17(2) of the Registration Act (Act No.16 of 1908) as under:-
“(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs.100/- or upwards in favour of any party to the suit, the decree or order would require registration.
(3) If decree were not to attract any of the Clause of Sub-section (1) of Section 17, it is apparent that the decree would not require registration.
(4) if the decree were not to embody the terms of compromise, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed 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.”
8. In view of the above legal position coupled with the fact that the defendant-appellants have no pre-existing rights in the suit property, the decree dated 5.12.1985 amounts to alienation of the suit land of the value of more than Rs.100/- and in view of Bhoop Singh’s case (supra), the said decree required registration. In this view of the matter, the authorities cited by the learned counsel for the appellants, i.e. Ekawari and Ors. v. Jadunadan Kamat and Ors., A.I.R. 1974 Patna 191, and State of Haryana and Ors. v. Vinod Kumar and Ors., (1986-1)89 Punjab Law Reporter 222 are not of any help.
9. In Ekawari and Ors. case (supra), a suit was filed for restoration of possession of the properties to the plaintiffs from which they were forcibly dispossessed in January 1956. The case of the plaintiffs was that the said defendant had claimed to have purchased those lands in execution of sale arising out of a suit for money filed by the defendant against the plaintiffs. It was the further case of the plaintiffs that they had no knowledge either of the money suit or of the decree passed therein or the proceedings in execution arising therefrom and the processes in all those proceedings have been suppressed fraudulently. On these allegations of fraud, they filed a suit for setting aside the decree and the execution sale, and in consequence thereof for restoration of possession of the properties to the plaintiffs on the ground that they were in possession of certain land.
10. In the aforesaid case, question of limitation was also involved under Section 95 of the Limitation Act. It was held by the High Court that the plaintiffs were aware, according to their case, that notices, either of the suit or of the execution proceedings, had not been served on them. The knowledge of the decree in the circumstances of that case was sufficient to make the plaintiffs aware of the decree and that the said decree was challenged in January 1959. In these circumstances, it was held that the very fact that the plaintiffs did not challenge the same until the year 1959, is against them and their conduct is one which would show that they had elected to rest content with things as they obtained. The same is not the position in the present case. There is no issue framed by the trial Court in this case on the point of limitation.
11. Vinod Kumar’s case (supra) related to Punjab Security of Land Tenures Act. This case has no relevancy to the facts involved in the present case. The following question was referred for consideration by a Full Bench of this Court :-
“Whether an order of a collector declaring land as surplus without affording the concerned landowner an opportunity of being heard, as envisaged by Rule 6 of the Punjab Security of Land tenures Rules, 1956, is a nullity and whether a suit to challenge the validity of such an order is maintainable in view of the clear language of Section 25 of the Act excluding the jurisdiction of the civil Court.”
12. In the aforesaid case there was a dispute about the proposition of law, whether a person who is neither party nor named in the judgment/order, is entitled to get the said judgment/order, is entitled to get the said judgment/order declared void or set aside. It was held that the person who is neither a party nor named in such an order, the order in the eye of law is ineffective and non-est and as such he is under no obligation to take proceedings to get it set aside. The only remedy left with such person is to get the said order declared void from the civil Court, In the circumstances, this authority does not help the appellants in as much as they had no pre-existing right in the suit property and, therefore, the same could not be transferred in their favour by way of consent decree dated 5.12.1985 rights in favour of the defendant-appellants.
13. For the aforesaid reasons I do not find any merit in this appeal and the same is hereby dismissed.