# S. KULDEEP SINGH & ANR v. S. PRITHPAL SINGH

- **Citation:** [2022] 13 S.C.R. 100
- **Court:** Supreme Court of India
- **Decided:** 2022-08-02
- **Case number:** Civil Appeal No. 81 of 2011
- **Bench:** K. M. Joseph, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-kuldeep-singh-anr-v-s-prithpal-singh-35527
- **Pages:** 23

## Headnote

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), 1975
- Jammu & Kashmir Agrarian Reforms Act, 1976 - Registration
Act, 1977 - s.17 - Jammu & Kashmir Transfer of Property Act -
s.138 - Suit for declaration and possession - The Suit was filed for
declaration and possession by the respondent-plaintiff who was
the adopted son of one 'SS' (who was the owner of property is in
dispute) - Respondent claimed that he received gifts of land in his
favour from SS - He supported his claim by producing a compromise
deed dated 18.12.1975 in between himself and one 'AJK'(tenant)
on which there was a thumb impression of SS endorsing the
instrument - Deputy commissioner (DC) passed an order recording
the compromise on 24.12.1975 - The appellant contended that they
are in possession of the land - The District judge passed decree in
favour of plaintiff-respondent, the finding was primarily based on
compromise deed - The first appeal by the appellants herein was
dismissed - The LPA preferred by the appellants was dismissed -
Appellants approached the Supreme Court and contended that the
compromise does not confer any title on the respondent and that
such an instrument requires compulsory registration as per s.17 of
1977 Act and further, that in terms of Section 3 of the Suspension
Act, 1975, the operation of the concerned provisions and all
proceedings thereunder 1972 Act remained in suspension until
30.3.1976 and therefore 18.12.1975 compromise and the DC's order
dated 24.12.1975 for correction of revenue records based on the
compromise are non-est - Held: With his endorsement on the
compromise, SS intended to give the right of personal cultivation
but the same does not in any manner suggest that SS had intended
to confer title on the respondent - The compromise cannot be treated
as a family arrangement - Furthermore, the compromise and the
[2022] 13 S.C.R. 100
100
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DC's consequent Order, was passed in a revenue proceeding thus
the compromise did not fall under the exception category under
Section 17(2)(vi) of - Thus, compromise in order to have legal effect
needed registration under the Registration Act, 1977 - The DC
lacked inherent jurisdiction to either entertain the appeal or endorse
the compromise during the suspended phase - Any order or decree
so passed through such unlawful exercise of power, will be a legal
nullity - Decree in favour of respondent (plaintiff) set aside.
Allowing the appeal, the Court
HELD:1. A. Whether the compromise dated 18.12.1975
confers title?
In order to adjudicate the above issue, this Court needs to
look at the compromise in its intent and functioning. The
compromise between the Plaintiff and tenant was recorded in a
proceeding for correction of revenue records under the 1972
Act and the Rules. There, the Plaintiff was admitted to be the
owner 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 statement
has to be read in the context in which it was made and how the
parties to the transaction understood the same. The plaintiff says
that his adoptive father SS intended to confer title on the Plaintiff
and SS would not have looked into the definition of "owner" under
the 1972 Act, before making the endorsement on the compromise.
On this, it cannot be ignored that the parties effectuated the
transaction in a proceeding under the 1972 Act. Thus, the
compromise exists within the four corners of the 1972 Act, and
must therefore be read by applying the statutory provisions. [Para
18][116-C-E]
2. The purpose of the compromise decree in the correction
proceedings under Chapter III of the Rules pertain only to
revenue entries, and the possession of land in capacity of a
personal cultivator. This could hardly confer any lawful title on
the plaintiff over

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SUPREME COURT REPORTS
[2022] 13 S.C.R.
S. KULDEEP SINGH & ANR.
v.
S. PRITHPAL SINGH
(Civil Appeal No. 81 of 2011)
AUGUST 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), 1975
- Jammu & Kashmir Agrarian Reforms Act, 1976 - Registration
Act, 1977 - s.17 - Jammu & Kashmir Transfer of Property Act -
s.138 - Suit for declaration and possession - The Suit was filed for
declaration and possession by the respondent-plaintiff who was
the adopted son of one 'SS' (who was the owner of property is in
dispute) - Respondent claimed that he received gifts of land in his
favour from SS - He supported his claim by producing a compromise
deed dated 18.12.1975 in between himself and one 'AJK'(tenant)
on which there was a thumb impression of SS endorsing the
instrument - Deputy commissioner (DC) passed an order recording
the compromise on 24.12.1975 - The appellant contended that they
are in possession of the land - The District judge passed decree in
favour of plaintiff-respondent, the finding was primarily based on
compromise deed - The first appeal by the appellants herein was
dismissed - The LPA preferred by the appellants was dismissed -
Appellants approached the Supreme Court and contended that the
compromise does not confer any title on the respondent and that
such an instrument requires compulsory registration as per s.17 of
1977 Act and further, that in terms of Section 3 of the Suspension
Act, 1975, the operation of the concerned provisions and all
proceedings thereunder 1972 Act remained in suspension until
30.3.1976 and therefore 18.12.1975 compromise and the DC's order
dated 24.12.1975 for correction of revenue records based on the
compromise are non-est - Held: With his endorsement on the
compromise, SS intended to give the right of personal cultivation
but the same does not in any manner suggest that SS had intended
to confer title on the respondent - The compromise cannot be treated
as a family arrangement - Furthermore, the compromise and the
[2022] 13 S.C.R. 100
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DC's consequent Order, was passed in a revenue proceeding thus
the compromise did not fall under the exception category under
Section 17(2)(vi) of - Thus, compromise in order to have legal effect
needed registration under the Registration Act, 1977 - The DC
lacked inherent jurisdiction to either entertain the appeal or endorse
the compromise during the suspended phase - Any order or decree
so passed through such unlawful exercise of power, will be a legal
nullity - Decree in favour of respondent (plaintiff) set aside.
Allowing the appeal, the Court
HELD:1. A. Whether the compromise dated 18.12.1975
confers title?
In order to adjudicate the above issue, this Court needs to
look at the compromise in its intent and functioning. The
compromise between the Plaintiff and tenant was recorded in a
proceeding for correction of revenue records under the 1972
Act and the Rules. There, the Plaintiff was admitted to be the
owner 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 statement
has to be read in the context in which it was made and how the
parties to the transaction understood the same. The plaintiff says
that his adoptive father SS intended to confer title on the Plaintiff
and SS would not have looked into the definition of "owner" under
the 1972 Act, before making the endorsement on the compromise.
On this, it cannot be ignored that the parties effectuated the
transaction in a proceeding under the 1972 Act. Thus, the
compromise exists within the four corners of the 1972 Act, and
must therefore be read by applying the statutory provisions. [Para
18][116-C-E]
2. The purpose of the compromise decree in the correction
proceedings under Chapter III of the Rules pertain only to
revenue entries, and the possession of land in capacity of a
personal cultivator. This could hardly confer any lawful title on
the plaintiff over SS's land. With his endorsement on the
compromise, SS perhaps intended to give the right of personal
cultivation but the same does not in any manner suggest that SS
had intended to confer title on the plaintiff. The land is therefore
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SUPREME COURT REPORTS
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of the orchard category. In this situation, the land which is the
subject matter of the Compromise being an Orchard stood
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. Thus This Court held that the compromise
(18.12.1975) does not convey any lawful title on the Plaintiff.
[Paras 19, 20, 21][116-G; 117-B-E]
B. Did the compromise require registration?
3. It is contended by the defendants that the compromise
did not comply with Section 17 of the Registration Act, 1977 which
mandates compulsory registration, and without a registered
document, no title or claim or possession can fructify. The
compromise was not amongst family members but between the
plaintiff and the tenant (not a family member). The statement of
SS "I accept the compromise", is only with regard to the internal
arrangement regarding the tenancy, and this will not make it a
family arrangement. Moreover, the plea that compromise is a
"Family Arrangement" is raised for the first time before this
Court. The Plaintiff significantly had waived his claim to other
assets left by SS (on the basis that the Plaintiff is his adopted
son), before the High Court. He cannot therefore be permitted
to raise such a contention for the first time before this Court.
Even otherwise, tenant was not a family member. Thus, he could
not have been a party to a so called "family arrangement". Besides,
none of the other family members were parties to the said
compromise either. Therefore, the documents in question would
require registration and it cannot be treated as a family
arrangement. [Paras 22 and 23][117-F-H; 118-A-C]
4. The compromise was required to be registered, under
Section 49 of the Registration Act, 1977 and also under Section
138 of the J&K Transfer of Property Act. Without such registration
no title can fructify for the plaintiff from the documents in question.
Furthermore, the compromise and the DC's consequent Order,
was passed in a revenue proceeding and this was definitely not a
part of a Court proceeding. That being the case, the compromise
did 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 order
to have legal effect needed registration under the Registration
Act, 1977. Since title is claimed, and the plaintiff founded his entire
case on the compromise, it would necessarily require registration.
Accordingly, question B is answered in affirmative. [Paras 26, 27
and 28][119-F-H; 120-A-C]
5. The DC, lacked inherent jurisdiction to either entertain
the appeal or endorse the compromise during the suspended
phase. In cases where the authority lacked jurisdiction under a
special Act and yet exercises powers, without authority of law,
any order or decree so passed through such unlawful exercise of
power, will be a legal nullity. The deficiency of jurisdiction of the
authority cannot be cured by the consent of the parties. The
challenge to such an incompetent order could be set up wherever
it is sought to be enforced or relied upon, even in execution or in
collateral proceedings. Accordingly answering in favour of the
defendants, the DC's order in our opinion can have no legal effect
as the same was passed during the operation of Suspension Act,
1975. This Court finds that the compromise being unregistered
cannot 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 SCC
465; Ajudh Raj v. Moti (1991) 3 SCC 136 : [1991] 2
SCR 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; Om
Prakash & Ors. v. R. K. Kalra (1988) 4 SCC 705 :
[1988] 1 Suppl. SCR 556; Kale and Others v. Deputy
Director of Consolidation and Others (1976) 3 SCC
119 : [1976] 3 SCR 202; Ram Charan Das v. Girija
Nandini Devi and Others AIR 1966 SC 323 : [1965]
3 SCR 841; Maturi Pullaiah and Another v. Maturi
Narasimham and Others AIR 1966 SC 1836; K. C.
Kappor v. Smt. Radhika Devi (Dead) by LRs. and Others
S. KULDEEP SINGH & ANR. v. S. PRITHPAL SINGH
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(1981) 4 SCC 487 : [1982] 1 SCR 907; Mehaboob
Sahab v. Syed Ismail and Others (1995) 3 SCC 693 :
[1985] 2 Suppl. SCR 537; Bhagwan Krishan Gupta (D)
v. Prabha Gupta and Others (2009) 11 SCC 33 : [2009]
3 SCR 393; Ganeshi (Dead) Through LRs. and Others
v. Ashok and Another (2011) 15 SCC 417 : [2011]
4 SCR 215; Ajambi (Dead) by Legal Representative v.
Roshanbi and Others (2017) 11 SCC 544; Ripudaman
Singh v. Tikka Maheshwar Chand (2021) 7 SCC 446;
Haryana State Industrial Development Corporation v.
Cork Manufacturing Co. (2007) 8 SCC 120 : [2007] 9
SCR 508 - referred to.
Case Law Reference
[1995] 3 Suppl. SCR 466
referred to
Para 16.3
[2008] 8 SCR 657
referred to
Para 16.3
(2015) 3 SCC 465
referred to
Para 16.3
[1991] 2 SCR 690
referred to
Para 16.5
[2017] 1 SCR 422
referred to
Para 16.5
[1970] 2 SCR 1
referred to
Para 17.3
[1988] 1 Suppl. SCR 556
referred to
Para 17.3
[1976] 3 SCR 202
referred to
Para 17.5
[1965] 3 SCR 841
referred to
Para 17.5
AIR 1966 SC 1836
referred to
Para 17.5
[1982] 1 SCR 907
referred to
Para 17.5
[1985] 2 Suppl. SCR 537
referred to
Para 17.5
[2009] 3 SCR 393
referred to
Para 17.5
[2011] 4 SCR 215
referred to
Para 17.5
(2017) 11 SCC 544
referred to
Para 17.5
(2021) 7 SCC 446
referred to
Para 25
[2007] 9 SCR 508
referred to
Para 33
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 81 of
2011.
From the Judgment and Order dated 28.10.2009 of the High Court
of 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 dated
28.10.2009 in LPA No.174/2008 where under the Division Bench of the
High Court of Jammu & Kashmir at Srinagar upheld the decree in favour
of the respondent-plaintiff rendered on 31.07.2003 by the learned District
Judge, Anantnag. The suit was filed seeking declaration and possession
in respect of the land measuring 11 Kanals and 15 marlas falling within
the survey nos.1829 and 1838 situated at Ranbirpora, Anantnag. The
appellants are the natural son and daughter of late S. Sucha Singh whereas
the respondent/plaintiff S. Prithpal Singh claimed to be the adopted son
of Sucha Singh.
2. In the suit, Prithpal Singh as the plaintiff claimed that he received
gifts of land in his favour from Sucha Singh. But although the suit schedule
properties were more, the plaintiff confined his relief to the land measuring
11 kanals and 15 marlas mentioned above and not any other lands of his
adoptive father Sucha Singh. In the plaint, Prithpal Singh enclosed certified
copy of a compromise deed in between himself and one Abdul Jalil Khan
and the claim of the plaintiff centers around the said compromise deed
dated 18.12.1975. The terms of the compromise being relevant are
extracted hereinbelow:
"COMPROMISE PARTIES
Sir, compromise is submitted as under:-
1. That in the case entitiled above the parties have amicably
compromised as under; out of Survey No. 1829 = Four kanals
and five marlas and out of Survey No. 1835 Min one Kanal fifteen
S. KULDEEP SINGH & ANR. v. S. PRITHPAL SINGH
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marlas in total six kanals including trees and houses situated at
Ranbirpora Tehsil Anantnag will remain under the ownership of
the Appellant in consideration of the Appellant under Survey No.
1829 = 3 Kanals 15 marlas, 1838 min 8 Kanals in total = 11 kanals
15 marlas including trees situated at village Ranbirpora Tehsil
Anantnag gives up his tenancy rights and hands over its possession
to the Respondent who will be considered its owner, no dispute
remains in future.
2. That the parties will bear their own costs of litigation, in light of
compromise the land be recorded in the name of parties in the
Revenue Registers.
3. It is prayed the compromise be accepted and the appeal decided
on the condition mentioned that will do justice.
Respondent
The Parties
Accepted the compromise
Appellant
Left Thumb impression of
Abdul jalil
Pritpal Singh
Thumb Impression
 I also accept the
 Compromise Sardar Sacha
 Singh S/o Amar Singh
 Ranibirpora Anantnag
 Father of Respondent
 Thumb Impression."
3. As can be seen Sardar Sucha Singh appended his thumb
impression to the above compromise deed with the expression "I also
accept 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 made
amongst them whereunder the tenant Abdul Jalil Khan gave up his
tenancy rights over certain parcels of land and for the earlier noted
11 kanals and 15 marlas including the trees situated on the said parcel at
village Ranbirpora, the respondent was accepted to be the owner by the
tenant. Consequential directions were accordingly issued by the D.C for
entering the compromise in the revenue records and as such the order
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dated 24.08.1974 by the Circle Officer regarding correction of tenancy
was disposed of in light of the compromise amongst both parties.
4. Parallelly, during the aforesaid proceedings, on 1.5.1972 the
Jammu & Kashmir Agrarian Reforms Act, 1972 (hereinafter referred
to as, "the 1972 Act") came into force under which new rights and
obligations were created and jurisdiction was conferred on the competent
authority for the purpose of correcting the revenue records. Section 2
(6) of this Act gave a wide interpretation to the term "owner" for the
purposes of revenue records and included "inferior owners", and those
claiming through the proprietor. Similarly, under Section 2(7), "personal
cultivation" by a person also included cultivation by owner and his
adopted son.
5. On the strength of Section 50 of 1972 Act, the Jammu and
Kashmir Agrarian Reforms Rules, 1973 (for short, "the 1973 Rules")
were notified. Rule 5 provided that the Khasra Girdwari Register for
Kharif 1971 upon due verification and authentication, was to be the record
of personal cultivation of lands as on 1.9.1971 (cutoff date). The Circle
Officers under Rule 7 were required to visit each village within their
jurisdiction to verify, amend, and authenticate entries for Kharif Register
Girdwari 1971. Rule 15 provided the procedure for amendment of
"return" or for collecting information for filing revenue entries under
Rule 11. This shows that after the cutoff date of 1.9.1971, the Circle
Officers were given new responsibility for verifying and compiling land
revenue entries and the procedure for amending entries in case of errors
or disputes, were also prescribed.
6. At that stage, Abdul Jalil Khan claiming tenancy rights on the
subject land applied for correction of tenancy to the Circle Officer and
exercising the power for correction of tenancy, the Circle Officer on
24.8.1974 ordered the application made by the tenant Abdul Jalil Khan.
The tenant Abdul Jalil Khan being aggrieved preferred appeal before
the 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 suspension
was to be in effect initially till 19.12.1975 but was extended later to
30.3.1976. These dates are significant because the compromise dated
18.12.1975 was entered while certain provisions of 1972 Act remained
inoperative because of the Suspension Act, 1975.
S. KULDEEP SINGH & ANR. v. S. PRITHPAL SINGH
[HRISHIKESH ROY, J.]
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7. On 1.6.1978 the new Jammu & Kashmir Agrarian Reforms
Act, 1976 (hereinafter referred to as, "the 1976 Act") came into force
with effect from 13.07.1978, replacing the suspended Act of 1972.
8. In course of verifying and correcting the entries in terms of the
order passed by the Collector on 24.12.1975 (during the period while the
Act of 1972 was under suspension) inquiries were conducted and the
competent officer attested mutation no.4133 whereby the land with trees
to the extent of 11 Kanals and 15 Marlas, were re-recorded in the name
of late S. Sucha Singh. The appellants, who are the natural son and
daughter of the land owner, claimed that since that date till today, they
are in possession of the land although in the interregnum, their father S.
Sucha Singh died.
9. The civil Suit by the respondent no.1 was initially instituted
before the Jammu & Kashmir High Court, for declaration and possession
of land and it was claimed in the Suit by the adopted son that the appellants
have forcibly dispossessed him from the land claimed in the Suit. The
respondent has founded his claim over Sucha Singh's land on the basis
of the compromise dated 18.12.1975 and the subsequent order recording
the compromise passed by the DC on 24.12.1975. Although the respondent
claimed to be adopted son of Sucha Singh (appellants' father), similar
assertion was not made on such basis for other properties of Sucha
Singh. The Suit filed before the High Court was transferred in 1995 to
the Court of the District Judge, Anantnag where the appellants as the
defendant nos.1 and 2 filed their written statement stating, inter alia, that
the 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 the
plaintiff. On the given-up claim based on the gift executed by late Sucha
Singh, the stand of the appellants/defendants was that the documents
were revoked by their father during his life time and the revocation deed
executed in September, 1975 was registered on 22.1.1976. Notably the
amendments sought by the plaintiff to the plaint was not pressed/rejected
and the relief in the suit was confined to 11 Kanals and 15 Marlas of
land based on the compromise dated 18.12.1975 and the Deputy
Commissioner's order dated 24.12.1975.
10. The learned District Judge took note of the following pedigree
table of the parties:
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11. Framing several issues on the basis of the pleadings of the
parties, the learned Judge after considering the materials on record found
in favour of the plaintiff that he is the owner of 11 Kanals and 15 Marlas
in Survey Nos. 1829 and 1838. This finding was based primarily on the
compromise dated 18.12.1975 between the plaintiff and Abdul Jalil Khan
and accordingly a decree for possession of land was passed in favour of
the plaintiff-respondent and against the defendants-appellants.
12. The Civil First Appeal No.117 of 2003 was then filed by the
appellants and likewise Cross Appeal No.72 of 2004 was filed by the
respondent assailing the District Judge order dated 31.7.2003 but the
learned Single Judge under his 24.9.2008 common order, dismissed both
appeals and thereby the decree/order dated 31.7.2003 came to be upheld.
13. Thereafter the appellants preferred the LPA No.174 of 2008
and specifically questioned the jurisdiction of the DC to pass the
24.12.1975 order by contending that the compromise dated 18.12.1975
was a nullity. According to the appellants, their father late Sucha Singh
through whom the plaintiff claims, was the owner of the subject land
and unless the land owner transferred the land in favour of the plaintiff,
through a valid registered instrument, the plaintiff can have no claim
over the subject land. It was specifically contended that under Section
49 of the Registration Act, 1908 and Section 138 of the Jammu &
Kashmir Transfer of Property Act, 1920 which are applicable to the
State, claim for title or of possession of immoveable property without a
registered instrument, cannot be entertained. Their say was that there is
nothing on record that Sucha Singh had transferred any land to the plaintiff
through a valid instrument. On the compromise, which was the basis for
S. KULDEEP SINGH & ANR. v. S. PRITHPAL SINGH
[HRISHIKESH ROY, J.]
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plaintiff's claim, the appellants projected that in terms of Section 3 of the
Suspension Act, 1975, the operation of the concerned provisions of the
1972 Act and all proceedings thereunder, remained in suspension until
30.3.1976 and therefore the 18.12.1975 compromise and the DC's order
dated 24.12.1975 for correction of revenue records based on the
compromise are non-est as the same was passed while the 1972 Act
was under suspension.
14. Having considered the rival projections, the High Court
observed that the only question which requires determination in the appeal
is, what is the effect of the compromise. To give the answer, the Court
noted that the certified copy of the compromise does not disclose that
the same was in connection with a proceeding initiated for resumption
of land but noted that the same related to correction of revenue records.
According to the Court the plaintiff being an Army personnel, was in a
better position to resume the land which was under the tenancy of Abdul
Jalil Khan and therefore the plaintiff was authorized to launch the
proceeding and enter into compromise with the tenant Abdul Jalil Khan.
The Division Bench also noted that the owner of the land Sucha Singh
had acknowledged the compromise deed which recorded the respective
ownership of the tenant Abdul Jalil Khan and the plaintiff, for the
concerned portions of the land of Sucha Singh. On the issue of the transfer
of land being without a registered document, the Court observed that the
instrument of compromise where a tenant accepts that his landlord is in
possession of certain land over which the tenant makes no claim and
surrenders his tenancy, would not require registration. The plaintiff's
right on the concerned land is also recognized by the Sucha Singh through
his endorsement. Moreover, since the appellants had not taken steps to
appropriately challenge the 18.12.1975 compromise within the period of
limitation, the title of the plaintiff stood perfected. The appeal accordingly
was dismissed under the impugned judgment.
15. We have heard Mr. Huzefa A. Ahmadi, learned Senior Counsel
appearing for the appellants. Mr. S.N.Bhat, learned Senior Counsel
appears for the respondent (plaintiff).
16.1 Explaining the implications of the thumb impression of late
Sucha Singh on the compromise deed, Mr. Ahmadi, learned Senior
Counsel submits that the same related only to the internal arrangement
regarding the tenancy of Jalil Khan and does not in any way transfer
any right of ownership to the plaintiff. According to the counsel the
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endorsement "I accept the compromise" does not in any manner suggest
that 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 was
entered in a proceeding for correction of revenue records and the same
must therefore be understood in that context. Adverting to the wide
definition of "owner" and "personal cultivation" under Section 2 (6)
and Section 2 (7) respectively under the 1972 Act, it is argued that the
definition is wide and includes persons claiming through the legal owner
and also "adopted sons" of the owner. Accordingly, it is argued that
acceptance of the plaintiff as an owner, does not imply that Sucha Singh
had intended to transfer his ownership right in favour of the plaintiff.
Projecting the limited power of the Circle Officer which was confined
to compiling and correcting revenue records as they existed on the cutoff
date 1.9.1971, it is submitted that the compromise in the revenue
correction proceedings under Chapter III of the Rules, can only relate to
revenue records and to possession of land in capacity as personal
cultivator. It is therefore argued that the compromise cannot and does
not confer title on the plaintiff.
16.3 Highlighting the requirement of mandatory registration under
Section 17 of the Registration Act, 1977, it is next argued that the
compromise does not comply with the mandate of law and since title is
claimed by the plaintiff only on the strength of compromise, the same
could not have been granted. The learned senior counsel has relied on
Bhoop Singh v. Ram Singh Major1 to argue that the law requires
registration of compromise order which creates rights, title or interest in
immovable property. The ratio in K. Raghunandan & Ors. v. Ali
Hussain Sabir & Ors.2 is also cited by the counsel to point out that the
Court has held that since the plaintiff claims title from the compromise
deed, as distinguished from recognition of pre-existing rights, the same
would necessarily require registration. The judgment in Phool Patti v.
Ram Singh3 is also pressed home by the counsel to buttress his argument.
Appellants question how legal title can be secured on the strength of the
compromise arrived at in the proceedings initiated by the tenant Jalil
Khan 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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process of verification under the 1972 Act. The document in question in
any case is required to be registered, in terms of Section 49 of the
Registration Act and Section 138 of the Jammu & Kashmir Transfer
of Property Act and the submission of Mr. Ahmadi is that without such
registration, the title rights for the plaintiff do not get crystalized.
16.4 Adverting to the provisions of Section 17 (2) (vi) of the
Registration 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 to
be registered as the compromise was in consequence of revenue
proceeding and not by a competent Court. Since the DC's order was
based on the compromise which also dealt with 6 Kanals land forming
part of Survey Nos.1829 and 1838 which was declared in favour of the
tenant Jalil Khan, it is argued by Mr. Ahmadi that since the suit of the
plaintiff is not restricted only to the 11 Kanals and 15 Marlas claimed by
him, the DC's order endorsing the compromise would require registration,
in order to legally recognize plaintiff's title, on the strength of these two
documents.
16.5 According to the appellants, the DC's order is of no legal
effect as the same was passed while the 1972 Act was under suspension
and during that period the authority lacked jurisdiction to exercise powers
under the 1972 Act. The 1972 Act remained under suspension during
25.3.1975 to 30.3.1976 and it is during this phase, the 18.12.1975
compromise was re-recorded. As such the compromise and the DC's
24.12.1975 order were at a time when the suspended Act was operating.
Therefore, it is argued that the DC/Collector lacked jurisdiction and
authority to entertain the appeal. In such a situation, the consent of the
parties to the lis can have no implication as the Authority lacked
jurisdiction by virtue of suspension of the 1972 Act. In support of his
contention Mr. Ahmadi, learned Senior Counsel relied on Ajudh Raj v.
Moti4,
"5. The principle for deciding the question of limitation
in a suit filed after an adverse order under a Special Act is
well settled. If the order impugned in the suit is such that it
has to be set aside before any relief can be granted to the
plaintiff the provisions of Article 100 will be attracted and if
no particular article of the Limitation Act is applicable the
suit must be governed by the residuary Article 113, prescribing
4 (1991) 3 SCC 136
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a period of three years. Therefore, in a suit for title to an
immovable property which has been the subject matter of a
proceeding under a Special Act if an adverse order comes in
the way of the success of the plaintiff, he must get it cleared
before proceeding further. On the other hand if the order has
been passed without jurisdiction, the same can be ignored as
nullity, that is, non-existent in the eye of law and it is not
necessary to set it aside; and such a suit will be covered by
Article 65. In the present case the controversial facts have
been decided in favour of the plaintiff-appellant and the
findings were not challenged before the High Court. The
position, thus, is that the plaintiff was the owner in cultivating
possession of the land and the defendant Moti was merely a
labourer without any right of a tenant or a sub-tenant. The
question is as to whether in this background it is necessary to
set aside the order passed in favour of the respondent under
Section 27(4) of the Act before the suit can be decreed or
whether the plaintiff can get a decree ignoring the said order
as void, in which case the suit undoubtedly will be governed
by Article 65."
The learned senior counsel further relied on Mohammad Ansari
v. Union of India & Ors5.,
"35. At this stage, it is necessary to recapitulate that
during the pendency of the matter before the High Court, the
Central Administrative Tribunal had passed the final order
on 5-11-2012 in favour of the appellant. Be that as it may,
the Tribunal does not have the jurisdiction to deal with an
issue of upgradation or the nature of lis raised by the appellant
before it. In the absence of lack of inherent jurisdiction to
deal with the issue, the said judgment is a nullity. It has no
existence in law. It is well settled in law that the judgment
passed is a nullity if it is passed by a court having no inherent
jurisdiction. The decree to be called a nullity is to be
understood in the sense that it is ultra vires the powers of the
court passing the decree and not merely voidable decree.
(See Hiralal Moolchand Doshi v. Barot Raman Lal
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Ranchhoddas [Hiralal Moolchand Doshi v. Barot Raman Lal
Ranchhoddas, (1993) 2 SCC 458]."
16.6 The appellants next contend that the subject matter of the
compromise is Orchard land which, under Section 2(4) of the 1972 Act,
stood excluded from the definition of land and therefore neither the tenant
Jalil 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 private
agreements in furtherance of which, any compromise could be entered.
16.7 On the finding against the defendants that they had not
challenged the compromise and therefore the rights over the land for the
plaintiff stood crystalized is contended to be an untenable position of
law. The decree according to the appellants is a legal nullity as the authority
lacked jurisdiction to pass any such order. It is therefore argued that the
same can be set aside even in collateral proceedings and the compromise
would not obliterate any lawful right of the landowner Sucha Singh, over
his own land.
17.1 Per contra, Mr. S.N. Bhat, the learned Senior Counsel for
the respondent (plaintiff) would firstly submit that since the appeal arises
out of the concurrent findings of three courts which decreed the suit
declaring title and possession in favour of the plaintiff, this Court in
exercising power under Article 136, should not upset those findings.
Furthermore, in the facts of the present case, this Court should not
interfere. It is submitted that the respondent as adopted son would get
only 11 Kanals & 15 Marlas. (The appellant has a case that respondent
had other properties). This in turn is disputed by the respondent.
17.2 According to the respondent, the right over the land in question
is declared on the basis of the 18.12.1975 compromise and the DC's
endorsement and since Sucha Singh the landowner had appended his
thumb impression on the compromise, the ownership of the plaintiff is
acknowledged. Thus, plaintiff's title was rightly protected by the courts.
According to Mr. Bhat, the parties to the transaction clearly understood
the purport of the compromise and as such confusion must not be created
on the issue by adverting to the definition of "owner" under the 1972
Act. It is further submitted that the Sucha Singh by making his endorsement
on the compromise obviously intended to give and recognize the right of
the plaintiff over the subject land and his act cannot be seen through the
definition of "owner" under the 1972 Act.
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17.3 On the issue of DC's order dated 24.12.1975 being non est
and void for having been passed during the operation of Suspension
Act, 1975, the respondent argues that such a contention was raised for
the first time in the LPA before the Division Bench of the High Court
and since that issue was not raised by the defendants either before the
Trial Court or the First Appellate Court, the Division Bench rightly held
that the appellants are disentitled to raise such contention. It is further
pointed out that the Suspension Act, 1975 did not suspend all proceedings
under the 1972 Act in its entirety and certain proceedings were kept
alive under Section 4 of the Suspension Act, 1975. Therefore, unless
the exact nature of the proceedings initiated before the Circle Officer is
brought forth, it cannot be said that Suspended Act, 1975 applies to the
compromise and the proceedings before the Deputy Commissioner. Since
great prejudice was caused to the respondent-plaintiff by permitting the
appellants to raise such contention for the first time in the LPA
proceedings, Mr. Bhat, learned senior counsel places reliance on Sitabai
& Anr. v. Ramachandra6 and Om Prakash & Ors. v. R.K. Kalra7.
17.4 The plea of estoppel against the appellants is also pressed
home by the senior counsel by projecting that the admission of ownership
of the respondent-plaintiff was made by Sucha Singh in the compromise
and the same being accepted by the DC, the appellants as the legal heirs
of Sucha Singh are estopped from raising such contention.
17.5 According to Mr. Bhat, the appellants are wrong in saying
that the compromise and the DC's order would require registration. The
counsel further argues that the transaction is essentially within the family
of Sucha Singh and the respondent herein being the adopted son of Sucha
Singh, the transaction should be construed as a family transaction, and it
would be an exception to the principles governing transaction amongst
strangers. Therefore, placing reliance on Kale and others vs. Deputy
Director of Consolidation and others8, Ram Charan Das vs. Girija
Nandini Devi and others9, Maturi Pullaiah and another vs. Maturi
Narasimham and others10, Mr. Bhat argues that the principles of estoppel
and 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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like registration for what is nothing but a family arrangement. In order to
explain the principles of estoppel in transactions involving families, Mr.
Bhat relies on K. C. Kappor vs. Smt. Radhika Devi (dead) by Lrs.
and others11, Mehaboob Sahab vs. Syed Ismail and others12,
Bhagwan Krishan Gupta (d) vs. Prabha Gupta and others13,
Ganeshi (Dead) Through Lrs. and others vs. Ashok and Another14
and Ajambi (Dead) by legal representative vs. Roshanbi and others15.
Findings
A. Whether the compromise dated 18.12.1975 confers title?
18. In order to adjudicate the above issue, we need to look at the
compromise in its intent and functioning. The compromise between the
Plaintiff and Abdul Jalil Khan (tenant) was recorded in a proceeding for
correction of revenue records under the 1972 Act and the Rules. There,
the Plaintiff was admitted to be the owner and in possession of land
which he personally cultivated. Sucha Singh with his thumb impression
endorsed the compromise deed. On this the defendants have contended
that the said statement has to be read in the context in which it was
made and how the parties to the transaction understood the same. The
plaintiff says that his adoptive father Sucha Singh intended to confer title
on the Plaintiff and Sucha Singh would not have looked into the definition
of "owner" under the 1972 Act, before making the endorsement on the
compromise. On this, it cannot be ignored that the parties effectuated
the transaction in a proceeding under the 1972 Act. Thus, the compromise
exists within the four corners of the 1972 Act, and must therefore be
read by applying the statutory provisions.
19. Proceeding further, the definitions of 'owner' and 'personal
cultivation' under Ss. 2(6) and (7) respectively of the 1972 Act are
expansive. The definition of owner is an inclusive one. It includes not
only the legal owner/proprietor, but also person claiming through the
legal owner. Specifically, the 'adopted sons' of the owner. Hence, the
purpose of the compromise decree in the correction proceedings under
Chapter III of the Rules pertain only to revenue entries, and the
11 (1981) 4 SCC 487
12 (1995) 3 SCC 693
13 (2009) 11 SCC 33
14 (2011) 15 SCC 417
15 (2017) 11 SCC 544
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possession of land in capacity of a personal cultivator. This could hardly
confer any lawful title on the plaintiff over Sucha Singh's land.
20. The power under the 1973 Rules confers limited power to the
circle officer's and it is confined to verifying, amending, and authenticating
revenue records as they existed on the cutoff date i.e., 1st September,
1971. Thus, it is clear that a mere affirmation in the context of revenue
records and personal cultivation rights cannot be interpreted as an
intention of Sucha Singh to confer title upon the Plaintiff. With his
endorsement on the compromise, Sucha Singh perhaps intended to give
the right of personal cultivation but the same does not in any manner
suggest 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) had
stated that Sucha Singh prepared "orchards". Albeit, by using the salary
of Plaintiff. The land is therefore of the orchard category. In this situation,
the land which is the subject matter of the Compromise being an Orchard
stood 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 issue
was definitely raised in the LPA proceeding before the High Court, apart
from being raised in the lower court also. In such a situation this Court is
required to keep the 'orchard' aspect in mind and also address the
implication of the same on the contesting parties.