# Smt. Kela & Anr v. Jahangir Singh & Ors

- **Citation:** (2024) 12 ILRA 230
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-17
- **Case number:** Writ B No. 3538 of 1982
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kela-anr-v-jahangir-singh-ors-51201
- **Pages:** 12

## Headnote

A. Code of Criminal Procedure, 1973 -
Section 145 - Decision by criminal court -
Decision by Civil Court - Effect of findings
returned in proceedings under Section 145
Cr.P.C. - a decision by a criminal court
does not bind the civil court while a
decision by the civil court binds the
criminal court - Findings returned in
proceedings U/s 145 Cr.P.C. are not
binding on a Civil Court. The Civil Court is
to decide the issue on merit i.e. on basis of
pleadings and evidence in regard to
possession of land in dispute. (Para 21)
B. Civil Law - Family Settlement - Whether
Registration Required - Scope of Oral Vs
Written Arrangements - Applicability of
Res Judicata - Civil Procedure Code, 1908
- Principles of Res Judicata, Section 11 -
Registration Act, 1908 - Section 17,
Documents
of
which
registration
is
compulsory - Section 49, Effect of nonregistration of documents required to be
registered - A family arrangement /
settlement can be oral, and no question of
registration arises if there is no written
document - If the arrangement is reduced
into writing merely as a memorandum of
what has already been orally settled and
acted
upon,
it
does
not
require
registration, even if the property value
exceeds ₹100 - If the terms were 'reduced
to the form of a document' and, the value
was Rs 100 or upwards, registration is
necessary. Absence of registration makes
the document inadmissible in evidence
and is fatal to proof of the arrangement
embodied in the document - Dismissal of
suit as withdrawn - if a suit is dismissed
as withdrawn, without adjudication on
merits,
proceedings
taken
therein
including judgment passed by trial Court
is wiped out, and such withdrawal does
not attract the bar of res judicata under
Section 11 CPC. Petitioners argued that
the Revisional Officer in 1969, u/s 59/61
of the U.P. Land Revenue Act, 1901
already
held
the
family
settlement
inadmissible. However, the Court held that
since the earlier suit had been dismissed
as withdrawn, no adjudication on merits
had taken place, and therefore, no finding
could operate as res judicata. (Para 22,
23, 24, 25)

Dismissed. (E-5)
List of Cases cited:

## Text

_Characters 0–39,876 of 42,293. This is a partial read: ask again with offset=39876 for what follows._

230 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh Negi v. Punjab National Bank, (2009) 2
SCC 570 and Nirmala J. Jhala v. State of
Gujarat, (2013) 4 SCC 301.

13. Apart from the other issues, it is
also true that in view of Regulation 88, the
impugned order imposing the punishment of
reduction to basic pay scale could not have been
awarded without the prior approval of the
Registrar, Cooperative Societies. Nevertheless,
since this Court is of opinion that the impugned
order is vitiated more fundamentally by a
flawed inquiry, it would not matter much
because the order impugned has to be quashed
with liberty to the respondents, if they so elect
to proceed afresh from the stage of the
charge"sheet.

14. There is still a further grievance
that the petitioner makes and more relief that he
seeks. The petitioner has retired from service
way back on 31.08.2017. It is the petitioner's
case that he has not been paid his gratuity,
employees provident fund, group insurance and
dues on account of leave encashment. Even if
the respondents elect to proceed afresh against
the petitioner, they would not be at liberty to
impose a punishment higher than that awarded
by the order impugned. This would not result in
any kind of terminal punishment against the
petitioner or an order for recovery of the loss
occasioned. Therefore, while the respondents
may consider the issue of awarding gratuity to
the petitioner, they would have to ensure
payment of the employee's provident fund,
group insurance and dues on account of leave
encashment, irrespective of the outcome of the
inquiry de novo, if any, undertaken against the
petitioner.

15. In the result, this petition succeeds
and is allowed. The impugned order dated
10.03.2016 passed by the Chief General
Manager, PCDF is hereby quashed. It will be
open to the respondents to proceed against the
petitioner afresh from the stage of the
charge"sheet in the manner indicated in this
judgment. If the respondents elect to proceed
afresh against the petitioner, the award of
gratuity
would
await
the
outcome
of
disciplinary proceedings taken de novo. The
employee's provident fund, group insurance and
dues on account of leave encashment shall be
paid to the petitioner forthwith, irrespective of
the fact, if fresh proceedings are taken against
the petitioner or not. If no fresh proceedings are
taken against the petitioner, the gratuity due
shall also be paid on the basis of the pay scale,
to which the petitioner was entitled prior to the
order impugned.

16. In the event, the respondents elect
to pursue fresh proceedings, the same shall be
expedited and concluded within a period of four
months next. In the event of fresh proceedings
being taken, it will not be open to the
respondents to impose a penalty, higher than
that awarded by the impugned order dated
10.03.2016, since quashed by this judgment.

17. There shall be no order as to costs.

18. Let this order be communicated to
the
Chief
General
Manager,
Pradeshik
Cooperative
Dairy
Federation
Limited,
Lucknow and the Managing Director, Pradeshik
Cooperative
Dairy
Federation
Limited,
Lucknow through the learned Civil Judge (Sr.
Div.), Lucknow by the Registrar (Compliance).
----------
(2024) 12 ILRA 230
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ B No. 3538 of 1982

Smt. Kela & Anr. ...Petitioners
Versus
Jahangir Singh & Ors. ...Respondents

Counsel for the Petitioners:
Virendra Singh, Deoraj Singh, Devendra
Dahma, K.M. Garg
12 All. Smt. Kela & Anr. Vs. Jahangir Singh & Ors.
231
Counsel for the Respondents:
K.M.L. Nigam, A.S. Diwaker, Rajiv Asthana,
S.C., Sudhir Kumar Pandey, Syed Ashraf Ali
A. Code of Criminal Procedure, 1973 -
Section 145 - Decision by criminal court -
Decision by Civil Court - Effect of findings
returned in proceedings under Section 145
Cr.P.C. - a decision by a criminal court
does not bind the civil court while a
decision by the civil court binds the
criminal court - Findings returned in
proceedings U/s 145 Cr.P.C. are not
binding on a Civil Court. The Civil Court is
to decide the issue on merit i.e. on basis of
pleadings and evidence in regard to
possession of land in dispute. (Para 21)
B. Civil Law - Family Settlement - Whether
Registration Required - Scope of Oral Vs
Written Arrangements - Applicability of
Res Judicata - Civil Procedure Code, 1908
- Principles of Res Judicata, Section 11 -
Registration Act, 1908 - Section 17,
Documents
of
which
registration
is
compulsory - Section 49, Effect of nonregistration of documents required to be
registered - A family arrangement /
settlement can be oral, and no question of
registration arises if there is no written
document - If the arrangement is reduced
into writing merely as a memorandum of
what has already been orally settled and
acted
upon,
it
does
not
require
registration, even if the property value
exceeds ₹100 - If the terms were 'reduced
to the form of a document' and, the value
was Rs 100 or upwards, registration is
necessary. Absence of registration makes
the document inadmissible in evidence
and is fatal to proof of the arrangement
embodied in the document - Dismissal of
suit as withdrawn - if a suit is dismissed
as withdrawn, without adjudication on
merits,
proceedings
taken
therein
including judgment passed by trial Court
is wiped out, and such withdrawal does
not attract the bar of res judicata under
Section 11 CPC. Petitioners argued that
the Revisional Officer in 1969, u/s 59/61
of the U.P. Land Revenue Act, 1901
already
held
the
family
settlement
inadmissible. However, the Court held that
since the earlier suit had been dismissed
as withdrawn, no adjudication on merits
had taken place, and therefore, no finding
could operate as res judicata. (Para 22,
23, 24, 25)

Dismissed. (E-5)
List of Cases cited:
1. Kale and otehrs Vs D.D.C. & ors., AIR 1976
SC 807

2. Bishnudeo Narain & anr. Vs Seogeni Rai &
ors., AIR 1951 SC 280

3. Banarasi & ors. Vs Ram Phal, 2003 (94) RD
541

4. R.S.R.T.C. & anr. Vs Bajrang Lal, (2014) 4
SCC 693

5. Budhlal & anr. Vs D.D.C., Gorakhpur, 1982
RD 324.

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard Sri K.M. Garg, learned
counsel for petitioners and Sri Syed Ashraf
Ali, learned counsel for respondent no.1.

2. In the present case, contesting
original respondent has filed a Suit under
Section 229-B of U.P.Z.A. and L.R. Act,
1950 (for short "Act of 1950") against
original Petitioners-1 and 2 for declaration
that he was a co-tenure holder in suit
property with defendants. The Suit was
dismissed vide order dated 23.06.1970. In
said Suit, following 5 issues were framed :-

"1. Whether plaintiff is co-tenure
holder with defendants no. 1 and 2 in the
land in suit?

2. Whether defendants no. 1 and
2 are sole sirdar in the land in suit?
232 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Whether suit is barred under
Order IX Rule 8 CPC?

4. Whether suit is barred by resjudicata?

5. What relief, if any, is the
plaintiff entitled?"

3. Issues No. 3, 4 and 5 were not
pressed and only issues no. 1 and 2 were
decided. For reference, relevant part thereof
is quoted below :-

"The first point to be seen is
whether plaintiff can acquire sirdari rights
by succession as son of Budha because
Budha was admitted as tenant of this land.
In my opinion, Budha was tenant of this
land and so far his death, plaintiff
automatically became sirdar of this land.
However, the plaintiff has not reported
succession as required by U.P. Land
Revenue Act and so the Court is precluded
for taking cognizance of the case on this
point because it is barred under Section
34(5) of U.P. Land Revenue Act. No doubt,
the defendants have not taken any objection
on this point but this being a legal point and
so it has been taken. Plaintiff is said to have
filed an application but there is no
document to support it. Therefore, the
claim of the plaintiff as sole sirdar of the
land cannot be recognized. Besides has not
pressed this point seriously but has raised
his claim on the basis of the compromise
and admission. The compromise is dated
06.06.1956. On this date, the Tenancy Act
was in force. Therefore, this compromise as
best can mean that the plaintiff recognized
defendants no.1 and 2 as co-tenant and
defendants no. 1 and 2's father recognized
the plaintiff as co-tenant. During the
continuance of the Tenancy Act, this cotenancy could not be recognized, in view of
the bar created by Section 33 provisions of
U.P. Tenancy Act because the Zamindar
was not a party to it. Besides, the
compromise was not recognized by Sri B.S.
Kaushik, Judicial Officer vide his order
dated 22.01.1966. It is placed on behalf of
the plaintiff that this suit was withdrawn
and so I think the point loses its
significance. This compromise is Ex.Ka.-1.
This compromise deed has been challenged
by defendants no.1 and 2 under the
circumstances it was necessary for the
plaintiff to have sent this document to some
expert for the comparison of thumb mark of
Hoop Karan deceased. As given in this
document with the admitted document of
Hoop Karan. This felicitation deed or
compromise is silent about the land
revenues payable on this land. This was
necessary with a view to decide the
valuation of this land coupled with the fact
if it requires registration or not. This
document was not produced by the plaintiff
in case u/s 145 Cr.P.C. in between him and
father of defendants no. 1 and 2. Therefore,
this document cannot be treated as genuine
and in case conferring any title on the
plaintiff. The next point is the admission of
Smt. Nanhi the then tenant of this land. It is
a settled law that there is no admission
against legal pleas. When co-tenancy
cannot be conferred or recognized by act of
parties in the form of compromise, it
cannot be recognized on the basis of
admission. Therefore, then admission plea
will also not help the plaintiff. Therefore, in
view of above discussion, plaintiff cannot
become sirdar either by succession or by
compromise or by admission. Apart from
these facts plaintiff has any right after the
death of Budha it was necessary for him to
file a declaratory suit after reporting
succession as required u/s 34 U.P. Land
Revenue Act challenging the compromise
can admission of the then Zamindar Abbas
Hussain because there could not be any
super imposition of tenancy over the land
12 All. Smt. Kela & Anr. Vs. Jahangir Singh & Ors.
233
of Jahangir Singh. The act of zamindar
could be void u/s 4 of the Tenancy Act.
When any compromise restricts a tenant
from enforcing his legal rights. Therefore,
the plaintiff has no case on the three points
referred to above. The fact of possession
will not help the plaintiff much because this
land became subject of litigation in
between the contesting parties after death
of Budha in proceedings u/s 145 Cr.P.C.
this land was declared to be in possession
Hoop Karan. Under these circumstances,
the
plaintiff
was
absolutely
out
of
possession ever since 1957. When he was
declared as such by the S.D.M. under these
circumstances of the plaintiff claims the
sole sirdari rights, he should have filed a
suit for ejectment against the defendants
no.1 and 2 as his tenant. This means that
plaintiff was ousted from this land and his
rights if any are extinguished by the
adverse possession of Hoop Karan and
after him his heirs. I, therefore, hold that
plaintiff is not co-tenure holder along with
defendants no. 1 and 2 in this land but
defendants no.1 and 2 are sole sirdars of the
same.
Both
the
issues
are
decided
accordingly."

4. Original respondent-1/plaintiff filed
an Appeal before Additional Commissioner
which was allowed, vide order dated
30.09.1972. Its relevant part is quoted
below :-

"अपीलकताा की ओर यि तका भकया गया भक अिर
न्द्यायालय ने बुद्ध का असल कास्क्तकार सिी रूप से माना था और
इसी प्रकार िािी अपील कताा िो बुद्ध भसंि का लड़का िै उसको
भििाभित िूभम में िाररस के अभधकारी भमले। यि िी तका भकया गया
भक अिर न्द्यायालय का यि भनणाय भक िािा 34(4) एक्ट
मालगुजारी से िाभित िाभित था। गलत क्यो भक बुद्धा भसंि की मृत्यु
जमीिारी उन्द्मुलन के पूिा िो गयी और उस समय धारा 34(5) एक्ट
मालगुजारी िाभखल खाररज का प्राथाना पत्र िेना आिश्यक निीं था।
यि िी तका निीं भकया गया भक कभथत पररिाररक फैसला एक्जीभिट
1 को गलत रूप से ररक्त न िोना भनणाय भकया गया। इस भिपरीत
पत्यपक्षी की ओर से यि तका भकया गया भक अपीलकताा ने
भिरासतन भििाभित िूभम मे अपने को सि कृषक निीं किा िै बभकक
6.6.56 के पाररिाररक फैसले के आधार पर िी अपना अभधकार
बताया िै। यि तका भकया गया भक िािी ने अपने िाि मे बुद्धा की
मृत्यु की कोई समय निीं भलखा अतएि यि निीं किा जा सकता भक
बुद्धा की मृत्यु जमीिारी भिनाि से पिले िुई या बाि में।

5. पत्रािली का अिलोकन से यि स्क्पष्ट िै भक
आरम्ि में भििाभित िूभम का कृषक बुद्धा भसंि भपता ि िािी था
जैसा भक उद्धरण खतौनी 1355 में अंभकत िै भजसमें बुद्धा भसंि
असल कास्क्तकारण िजा िै। िािी ने अपने िाि पत्र के पैरा नं० 1 में
यि अंभकत भकया िै अपने भपता बुद्धा भसंि के मरने पर यि भििाभित
िूभम पर जमीिारी उन्द्मुलन से पूिा काभबज ि िाभखल िोकर कास्क्त
कर रिा िै। इस प्रकार बुद्धा भसंि की मृत्यु पत्र में जमीिारी भिनाि के
पूिा अंभकत िै िािी के गिािान नं० 1 अिमि िुसैन ि गिाि नं० 2
जिागीर भसंि के कथनों से यि स्क्पष्ट िै भक बुद्धा भसंि की मृत्यु
जमीिारी भिनाि से पूिा िुई अतः बुद्धा भसंि की मृत्यु के बाि
िािीकताा भििाभित िूभम का कृषक िो गया 1958 ए० डब्लू०
आर० (रेिन्द्यु) पृष्ठ 34 में िाभखल खाररज का प्राथाना पत्र िेने से
कोई आिश्यकता निीं थी अतः अिर न्द्यायालय का यि भनणाय की
िाि धारा 34(5) से िांभछत िै गलत जान पड़ता िै। ऐसी कोई
आपभत्त प्रभतिािी की ओर से उठायी िी निीं गयी थी। पत्रािली पर
भिये िुये भिभिन्द्न प्रपत्रों से यि स्क्पष्ट िै भक भििाभित िूभम के बारे में
िािी के पभत िािी 1 ि 2 के मां बाप के बीच काफी मुकिमें बाजी
िुई ऐसा प्रकट िोता िै भक अब्बास िुसैन जो भििाभित िूभम के
जमीनिार थे उन्द्िोने भिना भकसी आिेि के 1360 फसली की
खतौनी मे अपना नाम मि नं० 3 में िजा करा भिया और उसके बाि
एक भमला जुला िाि िुबकरण की ओर से िायर भकया गया ििां पर
यि उकलेखनीय िै भक िुबकरण का नाम बुद्धा के जीिन काल में
किी अंभकत निीं िुआ लेभकन िुबकरण के िािा यू० पी० टेनेन्द्सी
एक्ट की धारा 63 के अन्द्तगात अब्बास िुसैन जमीिारी के भिरूद्ध
योभजत भकया और 2.4.55 के आिेि द्वारा यि िाि भडरी िुआ
इस िािे में अब्बास िुसैन ने िुबकरण का िािा तसलीम भकया था
और उसी तसभफये के आधार पर भडग्री िुई जान पड़ती िै ऐसा प्रतीत
िोता िै भक अब्बास िुसैन ने यि तसभफया िुबकरण से भमल जुल
कर भिया था जिांगीर भसंि अपीलकताा उस िाि में पक्ष निीं था
अतः िि भडरी बाध्य निीं कर सकती और उसका कोई असर इस
िाि पत्र पर निीं िै।

6. प्रभतिािी के गिाि संख्या 1 ि 2 मे िली िांभत
साभबत भकया िै पाररिाररक फैसला एक्जीिट क-1 पंचायत द्वारा
कराया गया था और उस पर िुबकरण का अंगूठा मौजूि िै।
प्रभतिािीगण 1 ि 2 के उस पाररिाररक फैसले से इन्द्कार भकया
234 INDIAN LAW REPORTS ALLAHABAD SERIES
परन्द्तु यि उनका काया था भक यि साभबत करते भक उनको भमला
िुबकरण का अंगुठा इस पर निीं िै इस बात की पुभष्ट की यि
पाररिाररक िुआ था श्रीमती नन्द्िी जो प्रभतिािीगण की मां िै की
स्क्िीकृत भिनांक 10.6.60 भजसकी प्रभतभलभप पत्रािली पर िै िोती
िै श्रीमती नन्द्िी िुबकरण की िेिा और प्रभतिािीगण 1 ि 2 की मां
िै ओ कुल काल तक भििाभित िूभम भक सि कृषक िी रिी िै और
उसके कराओं के कराने के बाि िी प्रभतिािी गण को भििाभित िूभम
में अभधकार भमले िै इस स्क्िीकृत भिनांक 10.6.60 में नन्द्िीं ने
िािी जिांगीर के संिोधन के प्राथाना पत्र को सिी माना था और
उसको भििाभित िूभम को 1⁄2 िाग पर अंभकत भकये जाने का
अनुरोध भकया था अतः यि पाररिाररक फैसला एक्जीभिट क-1
िली प्रकार साभबत िोता िै इस बात को कोई प्रिाि निीं भक
6.6.59 को जब पाररिाररक फैसला िुआ था जब भििाभित िूभम
की माभलयत सौ रूपये अभधक थी अतएि एक्जीभिट क को
रभजस्क्टरी कराना आिश्यक निीं थी।

7. अतः पत्रािली से यि साभबत िै भक प्रारम्ि में
जिांगीर से िी िािी को भििाभित िूभम पर एक मात्र कृषक िोने के
अभधकार प्राप्त थे परन्द्तु पाररिाररक फैसले द्वारा उसने िुबकरण को
सि कृषक मान भलया और िि िोनो भििाभित िूभम के सि कृषक िो
गये अतः िािी भििाभित िूभम का सि कृषक प्रभतिािीगण 1 ि 2
के साथ िली िांभत साभबत िोता िै। प्रत्यथी की ओर से यि तका
भकया गया भक भििाभित िूभम पर िािी का कब्जा साभबत निीं िोता
िै। अतः आर० डी० 1972 पृष्ठ 251 में भनणाय की गयी नजीर के
अनुसार उसका िाि धारा 42 एस० आर० एक्ट से बाभधत िै खसरा
1362 ि 64 में जिांगीर का कब्जा अंभकत िै ऐसा प्रतीत िोता िै
भक धारा 145 के बाि मे 9.8.57 को परगनाभधकारी ने भििाभित
िूभम का कब्जा िुबकरण के पक्ष में तय भकया था। परन्द्तु यि िाि
सि खातेिारी का िै ताभक एि मात्र खातेिारी का अतः िुबकरण
अथिा प्रभतिािी एक ि िो का कब्जा सि कृषक जिांगीर भसंि का
कब्जा माना जायेगा अतः कब्जे का प्रश्न इस िाि में मौभलक निीं िै
और िािी अपीलकताा को सि कृषक घोभषत भकया जाना चाभिए
तथा अपील स्क्िीकार िोने योग्य िै।"

5. Original petitioners being aggrieved
by above order, thereafter, have filed a
Second Appeal before Board of Revenue
which was dismissed vide order dated
01.02.1982. Its relevant part is quoted
below :-

"7. I have examined carefully the
judgments of both the Courts below and the
record of the case in the light of the
arguments advanced on behalf of the
parties. First I would like to deal with the
points which have been put forth on behalf
of the appellants raising a contention that
the suit was barred. The learned lower
appellate court has held that Budha Singh,
the father of the plaintiff-respondent
Jahangir Singh had died before the
abolition of Zamindari, and therefore, it
was not mandatory for Jahangir Singh to
move an application for mutation and
consequently the suit was not barred under
sub-Section 5 of Section 34 of the U.P.
Land Revenue Act. Further, from the trial
Court's record, it is clear that Jahangir
Singh had moved an application for
correction of papers in suit no. 11 of 1960.
This fact is not denied by the appellants. In
view of the aforesaid findings of the lower
appellate Court and above fact there is no
force in the contention that the suit was
barred under provisions of Section 34(5) of
U.P. Land Revenue Act.

A perusal of paragraphs 1, 2 and
3 read with sub part of para 6 of this plaint
filed by Jahangir Singh makes it clear that
the plaintiff had not only claimed his title
and possession over the land in suit but he
had also sought a declaration from the trial
Court regarding his rights and possession
as the sirdar of the land in suit. Under these
circumstances, the present suit cannot be
governed by the ruling cited by the learned
counsel for the appellants. Considering the
facts stated in the plaint and the evidence
led on behalf of the plaintiff in the trial
Court, there is no force in the contention
that the suit was barred under Section 42 of
the Specific Relief Act.

8. As regards, the question
whether the suit was barred due to
declaration under Section 145 Cr.P.C. and
continuous possession of the appellants for
more than 12 years, it would be discussed
in the following paragraph as it is related to
12 All. Smt. Kela & Anr. Vs. Jahangir Singh & Ors.
235
the compromise between the parties dated
06.03.1956.

9.
Now
coming
to
the
compromise dated 06.06.1956, it may be
stated that the plaintiff had claimed his
rights of title and possession to the land in
suit
mainly
on
the
basis
of
this
compromise.
This
compromise
was
accepted by Nanhi, the mother of the
appellants who had come into possession of
the land in suit after the death of her
husband, Hoop Karan. She was therefore,
competent to make an admission in regard
to the land in dispute and the appellants
who had come into possession of the land
in suit after the death of her husband, Hoop
Karan. She was therefore, competent to
make an admission in regard to the land in
dispute and the appellants who were not
holding the title and possession of the land
in dispute were not required to be party in
the suit under Section 33 of the Land
Revenue Act and therefore the acceptance
of the compromise by Nanhi in that suit
could not be questioned or ignored merely
on the basis that the appellants were not
parties to that suit. On behalf of the
respondents, it has been explained that the
compromise was in respect of land having
less than Rs. 100/- as rent and therefore, its
registration was not compulsory according
to the then provisions of U.P. Tenancy Act.
This contention has not been controverted
by the appellants in the courts below.
Further no copy of the compromise deed
has been filed. In the absence of any
written compromise, it is not possible to
judge the exact nature and implication of
that compromise. The only fact that clearly
emerges from the evidence on record in
regard to that compromise is that the
plaintiff, Jahangir Singh and Hoop Karan
and later on his sucessor, Nanhi and then
the two appellants had half share each in
the land in dispute which act of both the
appellants. This fact in itself does not
correct that the compromise to be valid
should have been registered under Section
17 of the Registration Act. In any case, its
acceptance by Nanhi in a suit under Section
33 of the U.P. Land Revenue Act was fine
so far as the rights regarding title and
possession of Jahangir Singh of the land in
dispute were concerned. The learned
Additional Commissioner has examined at
great
length
the
inclusions
of
this
compromise then reversed the findings of
the learned trial Court, cannot be sustained
for the reason as clearly stated by the
learned Additional Commissioner paras 5
and 6 of his judgment. 11, 10 Now coming
to the question whether the suit was barred
by adverse possession and limitation in
view of orders under Section 145 Cr.P.C. I
am inclaimed to agree entirely with the
learned Additional Commissioner that the
question of possession is not so significant
because of co-tenancy of the parties in the
land in suit. As stated earlier, the suit was
filed in the year 1956 after the first appeal
against the decision of the trial Court dated
19.03.1966
had
been
decided
on
04.12.1966. Thus, the suit was within
prescribed period of limitation. As regard,
the contention that the suit was barred by
res-judicata, I afraid it has no force. Since
the lower appellate Court had allowed a
frosk suit to be filed treating the earlier suit
as withdrawn, the principle of res-judicata
would not apply in such circumstance. The
appellants have failed to show if any
adjudication in regard to the title and
interest of the parties in regard to the title
and interest of the parties in regard to the
land in suit had been done by the courts in
the aforesaid suit and the first appeal. In the
absence, any such fact being established.
The appellants cannot be permitted to claim
the benefit of res-judicata specially when
this was not pressed other before the trial
236 INDIAN LAW REPORTS ALLAHABAD SERIES
Court of before the learned Additional
Commission in his appeal.

10. In view of the discussion and
findings given in the earlier paragraphs, I
am of opinion that the appellants have
failed to make out any case exclusively in
their favour either on the basis of the
alleged and exclusive adverse possession
over the land in suit supported by a
decision under Section 145 Cr.P.C. or any
other grounds.

11. In the result, I find that
second appeal has no force and it is hereby
dismissed."

6. Above referred orders passed by
First Appellate Court and Second Appellate
Court are impugned in this writ petition.

7. Learned counsel for petitioners has
submitted that Hoob Karan, father of
petitioner-2 has earlier filed a suit for
declaration under Section 59/63 of Act of
1939 which was decreed vide order dated
23.04.1955 that Hoob Karan was a
hereditary tenant. The suit was decided on
basis of a compromise. During said suit
proceedings, respondent-1 has filed an
objection, however, it was rejected.

8.
Learned
counsel
has
further
submitted that Jahangir Singh, respondent1 has also filed a suit to declare him a cotenant which was dismissed for want of
prosecution on 28.09.1963. A restoration
application filed was also dismissed and
thereafter an appeal was filed, which also
got dismissed on 06.03.1964. Respondent-1
has also filed another suit under Section
59/63 of Act of 1939 to declare him cotenant, however, said was dismissed as
withdrawn vide order dated 19.03.1969.

9.
Learned
counsel
has
further
submitted that despite earlier attempt of
original respondent-1 for declaration, was
failed, still, he has filed a fresh suit in the
year 1969 and present writ petition is
outcome of said suit.

10. Learned counsel has further
submitted that there were multiple criminal
cases between Jahangir Singh and Hoop
Karan and proceedings under Section 145
Cr.P.C. was drawn and vide order dated
09.08.1957, it was held that property in
dispute was in possession of Hoop Karan
and his son was restrained to interfere in
his possession.

11. Learned counsel has further
submitted that Hoop Karan died in the year
1958 and his wife Nanhi immediately
thereafter remarried and as such land in
dispute was inherited by petitioners as
minor daughters. Nanhi wife of Hoob
Karan has no right to file any compromise
and settle respondent-1 as co-tenant.

12. Learned counsel has further
referred extract of Khatauni 1360-F shows
that land in dispute is within municipal
limits and it was recorded in the name of
Abbas Hussain @ Jindu and in 1365-F, the
land in dispute was recorded in the name of
Hoop Karan which indicates that Jahangir
Singh was not in possession.

13. Learned counsel has further
submitted that suit was filed by respondent1 on basis of an alleged unregistered
agreement
dated
06.06.1956.
Said
agreement was never acted upon and being
an unregistered agreement, it was not
admissible and no presumption could be
drawn. The petitioners have filed an
application during suit proceedings that
unregistered alleged agreement was not
only inadmissible but in previous litigation,
it was also held inadmissible in evidence.
12 All. Smt. Kela & Anr. Vs. Jahangir Singh & Ors.
237
Learned counsel has further referred a
death certificate dated 22.09.2003 which
shows that father of Jahangir Singh viz.
Buddha died on 11.09.1956 i.e. after Act of
1950 came into force and since he has not
reported the succession in terms of Section
34(1) of Act of 1939, the suit was barred by
Section 34(5) of said Act.

14. Learned counsel has also referred
orders passed in proceedings under Section
145 Cr.P.C. which was decided on
09.08.1957 that at that time, possession of
petitioners was found on land in dispute.
Family arrangement was inadmissible in
evidence
for
want
of
compulsory
registration.

15. In support of his submissions,
learned counsel has placed reliance upon
judgments of Supreme Court in Kale and
otehrs vs. D.D.C. and others, AIR 1976
SC 807, Bishnudeo Narain and another
vs. Seogeni Rai and others, AIR 1951 SC
280, Banarasi and others vs. Ram Phal,
2003 (94) RD 541 and R.S.R.T.C. and
another vs. Bajrang Lal, (2014) 4 SCC
693 as well as judgment of this Court in
Budhlal
and
another
vs.
D.D.C.,
Gorakhpur, 1982 RD 324.

16. Learned counsel for respondents
has submitted that suit filed by respondent1 was wrongly dismissed by trial Court,
however, First Appellate Court has rightly
interfered with a reasoned order and
decreed the suit and therefore, a Second
Appeal filed by the petitioners was rightly
dismissed.

17. Learned counsel has further
submitted that any finding returned during
proceedings U/s 145 Cr.P.C. are not
binding on civil proceedings or revenue
proceedings.

18. Learned counsel has referred
paragraph 5, 6 and 7 of judgment passed by
First Appellate Court that Buddha was
काश्तकार and his name was recorded in 1355F. After his death respondent-1 was in
possession of land in dispute and used the
land as काश्त before Act of 1950, therefore,
he would not require to report for mutation
under above referred provisions. Name of
Hoop Karan was only recorded during
lifetime of Buddha. The family agreement
dated 06.06.1956 was proved and since it
was only for purpose of preparing the
recital
of
shares
already
distributed,
therefore, no registration was required.

19. Heard learned counsel for parties
and perused the record.

20. First issue to consider is what
would be the effect of findings returned in
proceedings under Section 145 Cr.P.C. that
Hoop Karan alone was in possession as on
09.08.1957. In this regard, the Court takes
note of a judgment passed by Supreme
Court in Shanti Kumar Panda vs.
Shakuntala Devi, (2004) 1 SCC 438 that a
decision of Criminal Court does not bind
the Civil Court and its relevant part are
being quoted below :-

"15. It is well settled that a
decision by a criminal court does not bind
the civil court while a decision by the civil
court binds the criminal court. (See Sarkar
on Evidence, 15th Edn., p. 845.) A decision
given under Section 145 of the Code has
relevance and is admissible in evidence to
show: (i) that there was a dispute relating to
a particular property; (ii) that the dispute
was between the particular parties; (iii) that
such dispute led to the passing of a
preliminary order under Section 145(1) or
an attachment under Section 146(1), on the
given date; and (iv) that the Magistrate
238 INDIAN LAW REPORTS ALLAHABAD SERIES
found one of the parties to be in possession
or fictional possession of the disputed
property on the date of the preliminary
order. The reasoning recorded by the
Magistrate or other findings arrived at by
him have no relevance and are not
admissible
in
evidence
before
the
competent court and the competent court is
not bound by the findings arrived at by the
Magistrate even on the question of
possession though, as between the parties,
the order of the Magistrate would be
evidence
of
possession.
The
finding
recorded by the Magistrate does not bind
the court. The competent court has
jurisdiction and would be justified in
arriving at a finding inconsistent with the
one arrived at by the Executive Magistrate
even on the question of possession.
Sections 145 and 146 only provide for the
order of the Executive Magistrate made
under any of the two provisions being
superseded by and giving way to the order
or decree of a competent court. The effect
of the Magistrate's order is that burden is
thrown on the unsuccessful party to prove
its possession or entitlement to possession
before the competent court.

16. In Bhinka v. Charan
Singh [AIR 1959 SC 960 : 1959 Cri LJ
1223] this Court held that the Magistrate
does not purport to decide a party's title or
right to possession of the land but expressly
reserves that question to be decided in due
course of law. His order is a temporary
order irrespective of the rights of the
parties, which will have to be agitated and
adjudicated upon by a competent forum
and in the manner provided by law. The life
of the said order is coterminous with the
passing of a decree by a civil court and the
moment a civil court makes an order of
eviction, it displaces the order of the
criminal court. The orders under Section
145 of the Code are thus merely police
orders and do not decide any question of
title.

17. We would like to clarify that
in the case of Bhinka [AIR 1959 SC 960 :
1959 Cri LJ 1223] the question - what is a
competent
court,
did
not
arise
for
determination; nor did the question as to
what is the weight and value to be assigned
to or what is the efficacy of the order of the
Magistrate
in
a
subsequent
suit
or
proceeding initiated before a competent
court directly arise for consideration. This
we say because it is also well settled that
Sections 145 and 146 nowhere specifically
provide for the order of the Magistrate
being subject to and superseded by only a
decree of "civil court". The words
"competent court" used in Section 146(1),
in the context in which they have been
used, only mean "any court which has
jurisdictional competence to decide the
question of title or rights to the property or
entitlement to possession based on right or
title to the property though the court is not
necessarily a civil court". The words "until
evicted therefrom in due course of law" as
occurring in sub-section (6) of Section 145
mean the eviction of the party successful
before the Magistrate, consequent upon the
adjudication of title or right to possession
by a competent court; that does not
necessarily mean a decree of eviction. The
party unsuccessful before the Magistrate
may dispute the correctness of the finding
arrived at by the Magistrate and is at liberty
to show before the competent court that it
had not dispossessed the successful party or
that it is the unsuccessful party and not the
successful party who was actually in
possession and the finding to the contrary
arrived at by the Magistrate was wholly or
apparently erroneous and unsustainable in
law.

18. In Jhummamal v. State
of
M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri)
12 All. Smt. Kela & Anr. Vs. Jahangir Singh & Ors.
239
974] this Court has held that a concluded
order under Section 145 CrPC, made by a
Magistrate of competent jurisdiction should
not be set at naught merely because the
unsuccessful party has approached the civil
court. An order made under Section 145
CrPC, deals only with the factum of
possession of the party as on a particular
day. It confers no title to remain in
possession of the disputed property. The
order is subject to decision of the civil
court. The unsuccessful party, therefore,
must get relief only in the civil court. He
may move the civil court with a properly
constituted suit. He may file a suit for
declaration and prove a better right to
possession. The civil court has jurisdiction
to give a finding different from that which
the Magistrate has reached. Here again we
may hasten to add that the expression "civil
court" used by this Court in Jhummamal
case [(1988) 4 SCC 452 : 1988 SCC (Cri)
974] means competent court and not
necessarily a civil court as commonly
understood."

21. In aforesaid circumstances, Court
is of considered opinion that findings
returned in proceedings U/s 145 Cr.P.C. are
not binding on a Civil Court. The Court
will decide the issue on merit i.e. on basis
of pleadings and evidence in regard to
possession of land in dispute.

22. Second issue for consideration is
effect of alleged family settlement dated
06.06.1956
i.e.
whether
it
requires
registration or not. In this regard, learned
advocates for rival parties have referred
judgment of Supreme Court in Kale (supra)
wherein it was held as follows :-

"20. A
Full
Bench
of
the
Allahabad
High
Court
in Ramgopal v. Tulshi Ram [AIR 1928 All
641, 649 : 26 ALJ 952] has also taken the
view that a family arrangement could be
oral and if it is followed by a petition in
court containing a reference
to the
arrangement and if the purpose was merely
to
inform
the
court
regarding
the
arrangement, no registration was necessary.
In
this
connection
the
Full
Bench
adumbrated the following propositions in
answering the reference:

"We would, therefore, return the
reference with a statement of the following
general propositions:

With
reference
to
the
first
question:

(1) A family arrangement can be
made orally.

(2) If made orally, there being no
document, no question of registration
arises.

With reference to the second
question:

(3) If though it could have been
made orally, it was in fact reduced to the
form of a "document", registration (when
the value is Rs 100 and upwards) is
necessary.

(4) Whether the terms have been
'reduced to the form of a document' is a
question of fact in each case to be
determined upon a consideration of the
nature and phraseology of the writing and
the circumstances in which and the purpose
with which it was written.

(5) If the terms were not 'reduced
to the form of a document', registration
was not necessary (even though the value is
Rs 100 or upwards); and while the writing
cannot be used as a piece of evidence for
what it may be worth, e.g. as corroborative
of other evidence or as an admission of the
transaction or as showing or explaining
conduct.

(6) If the terms were 'reduced to
the form of a document' and, though the
240 INDIAN LAW REPORTS ALLAHABAD SERIES
value was Rs 100 or upwards, it was not
registered, the absence of registration
makes the document inadmissible in
evidence and is fatal to proof of the
arrangement embodied in the document.""

23. Learned counsel for petitioners has
referred a decision dated 19.03.1969 passed
by Revisional Officer in a Suit filed by
respondent-1 under Section 59/61 of U.P.
Land Revenue Act, 1901 wherein on issue
of admissibility of family settlement an
order was passed that it could not be
admissible in evidence though it has not
been disputed that suit was subsequently
dismissed as withdrawn vide order dated
19.03.1969.

24. On a question that whether said
finding on compromise would be final on
issue and would raise a bar of res-judicata,
the Court considers the discussion made
by
Second
Appellate
Court
that
petitioners have failed to show that any
adjudication in regard to title and interest
of parties was decided in said suit. Said
suit
was
dismissed
as
withdrawn,
therefore, any finding returned therein
would not act as a res-judicata. In this
regard, a reference is taken of a judgment
passed
by
Supreme
Court
in
Sri
Ramchandra Mission and another vs.
P. Rajgopalachari and others, (2008)
15 SCC 533 and its relevant paragraph is
quoted below :-

"12. It is pointed out that the
earlier suit having direct effect was
withdrawn and the effect of it has to be
considered. The effect of the withdrawal of
a suit has been considered by this Court
in K.
Sivaramaiah v. Rukmani
Ammal [(2004) 1 SCC 471] . It was inter
alia observed as follows : (SCC p. 475,
para 5)

"5. So far as Original Suit No.
7359 of 1989 is concerned, the findings
recorded in the judgment therein could
have constituted res judicata but the fact
remains that the appellate court permitted
the withdrawal of the suit and once the suit
has been permitted to be withdrawn all the
proceedings taken therein including the
judgment passed by the trial court have
been wiped out. A judgment given in a suit
which has been permitted to be withdrawn
with the liberty of filing a fresh suit on the
same cause of action cannot constitute res
judicata in a subsequent suit filed pursuant
to such permission of the court.""

25.
From
Ramchandra
Mission
(supra), it is evident that if a suit is
dismissed as withdrawn, proceedings taken
therein including judgment passed by trial
Court would be wiped out whereas
admittedly in present case, the suit was
dismissed as withdrawn without any
judgment on merit as well as order dated
22.01.1966 passed in said suit has only
referred that since value of land involved in
family settlement was more than Rs. 100/-,
therefore, it is required registration, which
could be considered as a trial order passed
on merit.

26. So far as issue in terms of Kale
(supra) that on basis of contents of family
settlement
that
whether
it
requires
registration or could still be considered,
therefore, by said order, requirement of resjudicata was not fulfilled, therefore, it
would not be barred for trial Court, to
consider whether said document requires
registration or not. The plea of res-judicata
was rightly rejected by Trial Court and by
Second
Appellate
Court.
Nanhi
has
accepted the family settlement/compromise
as well as it was also not correct to contend
that property was valued more than Rs.
12 All. Dindyal & Ors. Vs. Board of Revenue & Ors.
241
100/- as well as that even it was valued
more than Rs. 100/-, still, since by said
document, shares of party which were
already accepted and acted upon were
recorded, therefore, no registration was
required.

27. The issue no.3 before trial Court
i.e. whether suit was barred under Order IX
Rule 9 CPC was not pressed. Order IX
Rule 8 CPC provides procedure where
defendants only appear. Order IX Rule 9
CPC provides decree against plaintiff by
default bars fresh suit i.e.