JUDGMENT
Swatanter Kumar, J.
1. Learned counsel for the appellants has contended that as per the principles enunciated by the Hon’ble Supreme Court of India in the case of Bhoop Singh v. Ram Singh, (1996-1)112 P.LR. 559 (S.C.), the Court was obliged to examine to greater detail whether the party had a pre-existing right or not. He further contended that learned Courts below have mis-appreciated the evidence and have not arrived at a correct decision in consonance with the judgment of the Hon’ble Supreme Court of India. In order to examine the merits of this contention, reference to the basic facts would be necessary.
2. Ranjiv Singh Saini and another son of Arjan Singh filed a suit against him stating that they were sons of Arjan Singh; the defendant was owner in possession and he had transferred the said land by way of a family settlement in favour of the plaintiffs on 15.6.1996 and as total land has fallen to their share they have become owners in possession. They further stated that as the defendant was trying to resile from the settlement, the suit for declaration was filed. The defendant filed a written statement admitting the claim of the plaintiff and even made a statement to that effect. As hardly any issue arose for determination before the learned trial Court, no issue was framed and a legal controversy whether a decree in favour of the plaintiffs should be passed or not was decided by the learned Trial Court. The learned Trial Court came to the following conclusion:
“However, according a jamabandi, placed on the file, defendant is owner in possession of the suit land, as per the share detailed in para No. 1(i) to 1(iii) of the plaint. As per the jamabandi, khewat No. 3 Khatoni No. 3 is owned and possessed by Baljit Singh and as per mutation No. 989, the defendant has purchased this land vide sale deed dated 30.4.1996, for a sale consideration of Rs. 2 lacs from Ashok Kumar. Said Ashok Kumar had purchased this very land for a sale consideration of Rs. 2,66,000/-, On 14.7.1995 from Baljit Singh, as per mutation No. 965. As per mutation No. 2844, share in the land measuring 9 kanals 16 marlas of khewat No. 277 was purchased by Arjan Singh for a sale consideration of Rs. 39,500/-whereas as per mutation No. 2845, share in the land measuring 11 kanal 14 marla was purchased by defendant for a sale consideration of Rs. 35,000/- from Dayal Singh.
5. Thus, it is clear that, though the defendant is owner in possession of the suit land detailed in Para No. 1(ii) and Para No. 1(iii) of the plaint, yet this land is the self-acquired property of the defendant and it is not a co-parcenary property. Plaintiffs do not have any pre-existing right in the suit land.
6. With regard to the suit land detailed in para No. 1(i) of the plaint, jamabandi does not show that this land is co-parcenary property of the parties or the same was inherited by the defendant from his father and is ancestral one. If the land is not co-parcenary property then the plaintiffs have no pre-existing right in the same.”
As a result of the above discussion, the learned trial Court dismissed the suit leaving the parties to bear their own costs vide judgment and decree dated 9.12.1996. The decree was unsuccessfully assailed in appeal by the appellants. The appeal was dismissed by the learned Additional District Judge, Kurukshetra vide order dated 15.9.1997. The discussion recorded by the learned 1st Appellate Court clearly shows the application of mind to the questions in controversy. The relevant portions read as under:-
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I am of the view that the observations made by the Hon’ble Supreme Court of India in Kale’s case (supra) and the observations made by the Hon’ble High Court of Punjab and Haryana in Joginder Singh’s case (supra) are not disputed. However, these authorities do not apply to the facts of the present case. It is nowhere the case of the plaintiffs that the plaintiffs had a pre-existing right in the suit property which was transferred in favour of the plaintiffs in a family settlement, but where rights of ownership are being conferred for the first time on the plaintiffs through a family settlement it must be reduced into writing and requires registration. No such family settlement has been placed on the record so as to enable this Court to arrive at a conclusion as to what property had gone to the share of the defendant and which property has come to the share of the plaintiffs in the family settlement.
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Reference may be taken from the observations made by the Hon’ble Supreme Court of India in Bhoop Singh v. Ram Singh, (1996-1)112 P.L.R. 559 (S.C.), where it was observed that it is the duty of the court to examine in each case whether the parties have any pre-existing right to the immovable property or whether under the order or decree of the Court, one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in present in immovable property of the value of Rs. 100/- or upward in favour of the other party for the first time, either by compromise or pre-tended consent. If latter be the position, the document is compulsorily registerable.”
3. The suit was filed for declaration on 3.9.1996 while the alleged settlement is dated 15.6.1996. For the said settlement which created the rights of the parties for the first time was admittedly not a registered document. The said document did not confirm or reiterate any pre-existing right as per the revenue record. The property was stated to be the self acquired property of the defendant, as such, by virtue of their birth, the plaintiffs got no interest in the suit property.
4. The facts as they appear on record indicate that intention was to create rights for the first time in June 1996 when the alleged document was executed. This was neither confirmation of the pre-existing rights nor affirmation of the settled rights. The admission on the part of the parties was a clever device which was apparently collusive intended to avoid payment of requisite stamp duty. The suit is nothing but an attempt to abuse the process of law for an ulterior motive of avoiding the payment of requisite revenue. The learned counsel for the parties were not able to bring any authority or material on record to show that the concurrent view expressed by the Courts below was illogical or perverse.
5. The result of the above discussion is that the appeal is dismissed on merits without any order as to costs.
