Dismissed

Ellias v. Muhammed Kishore

Kerala HC13 Dec 2016RSA/400/2016

Case brief

AI extract

What is this about?

In this regular second appeal against findings in execution and rent control proceedings, the High Court of Kerala upheld the binding nature of a compromise decree in a property partition suit. The Court ruled that the decree was not voidable based on alleged lack of understanding, was not compulsorily registrable under the Registration Act, and that title vested upon the decree's passing without

What did the court decide?

The Regular Second Appeal was dismissed. All pending interlocutory applications stood closed.

Ellias Vs Muhammed Kishore — Partition | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938

¶5

RSA.No. 400 of 2016 (E)

¶6

AGAINST THE JUDGMENT & DECREE DATED 06-10-2015 IN AS.97/2008 of DISTRICT COURT, PALAKKAD

¶7

AGAINST THE ORDER DATED 27-02-2008 IN EA.532/2007 IN EP. 166/2007 IN RCP.6/2006 of MUNSIFF COURT, CHITTUR

¶8

APPELLANT(S)/APPELLANT/PETITIONER:

¶9

ELLIAS S/O. HANEEFA, AGED 59, METTUPALAYAM KOLLENGODE POST, KIZHAKKETHARA VILLAGE CHITTUR TALUK. NOW RESIDING AT PULIKKOTTUKALAM S.V. STREET, KOLLENGODE, KOLLENGODE.P.O. PALAKKAD DISTRICT.

¶10

BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P

¶11

RESPONDENT(S)/RESPONDENTS 2 TO 11/RESPONDENTS 2 TO 4 & LRS OF RESPONDENT NO.1:

¶12

1. MUHAMMED KISHORE S/O. MUHAMMED IBRAHIM, AGED 40, CHIKKANAMPARA KOLLENGODE.P.O., CHITTUR TALUK-678508.

¶13

2. PARASU, S/O. NARAYANAN CHETTIAR, AGED 37, X/465 KOLLENGODE VILLAGE AND POST, CHITTUR TALUK-678508. 3. MEHABOOB, W/O. HANEEFA, AGED 80, METTUPALAYAM KOLLENGODE VILLAGE AND POST, CHITTUR TALUK PALAKKAD DISTRICT-678508.

¶14

4. JAINAMA, W/O. MUHAMMED IBRAHIM, AGED 75, CHIKKANAMPARA KOLLENGODE POST, CHITTUR POST, CHITTUR TALUK PALAKKAD DISTRICT-678508.

¶15

...2/-

¶16

RSA.No. 400 of 2016 (E)

¶17

-2-

¶18

5. VAHEED BHANU, D/O. MUHAMMED IBRAHIM, W/O. MUHAMMED SADULLA, AGED 55 AMBATTUPARAMBU KALAM, THATHAMANGALAM POST CHITTUR TALUK, PALAKKAD DISTRICT-678508.

¶19

6. MUHAMMED KHANI @ BABU, S/O. MUHAMMED IBRAHIM, AGED ABOUT 53, CHIKKANAMPARA KOLLENGODE POST, CHITTUR TALUK, PALAKKAD DISTRICT678501. 7. JEREENA, W/O. JAINULABDEEN, AGED 51, KARIPPALI PATTANCHERRY POST, CHITTUR TALUK, PALAKKAD DISTRICT678101. 8. SAKKEER HUSSAIN, S/O. MUHAMMED IBRAHIM, AGED ABOUT 45, CHIKKANAMPARA KOLLENGODE POST, CHITTUR TALUK, PALAKKAD DISTRICT678101 . 9. HASEENA, W/O. SIRAJ, AGED 41, ROBINSON ROAD KOPPAM AMSOM, PALAKKAD-678001.

¶20

10. SHAJITHA, W/O. HARIS, AGED 39, BHARATH NAGAR EAST VENNAKKARA, PALAKKAD-678001. R1, R4 TO R10 BY ADV. SRI.P.B.KRISHNAN R8 BY ADVS. SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN

¶21

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶22

OKB

¶23

K.HARILAL, J.

¶24

R.S.A. No.400 of 2016

¶25

Dated this the 13^th day of December, 2016

¶26

JUDGMENT

¶27

~ ~ ~ ~ ~

¶28

The appellant is an obstructor, who resisted

¶29

execution of the order of eviction passed by the Rent Control Appellate Court in R.C.P. No.6/2006 when delivery was sought to be taken by the landlord, the 1^st respondent herein. The parties are referred to as in the Execution Application. The appellant filed E.A. No.532/2007 in E.P. No.166/2007 before the Munsiff's Court, Chittur under Order 21 Rule 97 of the Code of Civil Procedure for declaring his half right and possession over the petition schedule property. The landlords were impleaded in E.A. No.532/2007 as respondents 1 and 2.

¶30

According to the petitioner, the 1^st respondent

¶31

is the brother of the petitioner's father Haneefa. He filed O.S.No.100/1987 for partition, before the Sub

¶32

RSA.400/16-E :2:

¶33

Court, Palakkad, making a false claim over the property including the petition schedule property. He is not at all a legal heir of Haneefa and he is having absolutely no right over the property of Haneefa. But, in the said suit, a compromise decree was passed by the court and the petitioner had signed the compromise petition without fully understanding its contents and it was not at all a valid compromise. Later, the petitioner filed an application to set aside the said compromise decree and that is pending consideration before the Sub Court, Palakkad. The 1^st respondent had filed E.P.No.69/2004 before the Sub Court, Palakkad for getting delivery of the petition schedule property in execution of the compromise decree and that is also pending consideration. Thus, the petition schedule property has not been delivered to the petitioner through the court. Subsequently, the 1^st respondent had created a false assignment deed in favour of his son, the 2^nd respondent, and thereafter filed R.C.P.No.6/2006 for getting vacant possession of

¶34

RSA.400/16-E :3:

¶35

the petition schedule building. Thereafter, the 1^st respondent obtained an ex parte eviction order in the said Rent Control Petition and the same was alleged to have been obtained fraudulently and collusively. Later, the 1^st respondent had filed E.P.No.166/2007 for obtaining delivery on the basis of the eviction order. Since the compromise decree is not a valid decree, the respondents 1 and 2 are not entitled to get delivery in the Rent Control Petition, which was filed on the basis of the said invalid compromise decree. According to the petitioner, he has half right over the said petition schedule property and hence it cannot be delivered to the respondents.

¶36

The respondents 1 and 2 filed a detailed counter opposing the application and contending that the compromise decree passed in O.S.No.100/1987 is a valid decree and the said decree was passed on the basis of the compromise petition filed by the petitioner and the respondents in O.S.No.100/1987. Subsequently, the 1^st respondent had obtained a

¶37

RSA.400/16-E :4:

¶38

purchase certificate from Kollengode Land Tribunal with respect to the petition schedule building and thereafter he gifted the property to his son, the 2^nd respondent, by way of a registered settlement deed. At present, the 2^nd respondent is the absolute owner in possession of the petition schedule building and he is paying tax for the same. The petitioner has signed the compromise petition after knowing fully well about the contents of the compromise petition and the parties in O.S.No.100/1987 settled the entire dispute on common consensus. Thus, the compromise decree passed in O.S.No.100/1987 is binding on the petitioner and he is estopped from contending otherwise. According to the respondents, the petitioner has neither right nor possession over the petition schedule property, as it belongs to the respondents 1 and 2 by virtue of the compromise decree and subsequent settlement.

¶39

On the rival pleadings both parties adduced evidence and after appreciating the evidence on

¶40

RSA.400/16-E :5:

¶41

record, the trial court dismissed the petition on a finding that the compromise decree passed in O.S.No.100/1987 is binding on the petitioner and he is estopped from contending otherwise. In appeal filed by the petitioner, the appellate court also confirmed the aforesaid finding and dismissed the appeal. Thus, the concurrent findings, whereby the petitioner's claim of half right over the petition schedule property stands rejected, are assailed in this Regular Second Appeal.

¶42

Heard the learned counsel for the appellant and the learned counsel for the respondents.

¶43

Shri Sajan Varghese, the learned counsel for the appellant advanced three-folded arguments before this Court assailing the concurrent findings of the courts below. Firstly, according to him, the compromise decree in O.S.No.100/1987 is not binding on the appellant. Secondly, it is contended that since delivery was not effected in execution of the decree passed in O.S.No.100/1987 the respondents cannot claim

¶44

RSA.400/16-E :6:

¶45

perfect title merely on the basis of compromise decree. Thirdly, the compromise decree is not in

¶46

force as it was not registered, though it was a compulsorily registrable document under Section 72 of the Registration Act.

¶47

Going by the impugned judgments under challenge, it could be seen that the courts below had addressed all the three points and rejected on merits with the support of judicial precedents on the question of law. The first point to be considered is, whether the courts below can be justified in finding that the compromise decree passed in O.S.No.100/1987 is binding on the petitioner. It is the case of the petitioner that he had signed the compromise petition in O.S.No.100/1987 without understanding the contents of the petition. Admittedly, this Execution Application has been filed 15 years after the passing of Ext.A5 compromise decree in O.S.No.100/1987. The present petitioner and his mother, who claimed half right over the petition schedule property as legal

¶48

RSA.400/16-E :7:

¶49

heirs of the late Haneefa, were also parties in the compromise decree passed in O.S.No.100/1987. The

¶50

aforesaid original suit was filed by the 1^st respondent, who was the brother of late Haneefa, claiming right to partition, impleading the petitioner and two wives of late Haneefa and his mother as parties. Thus, all the parties in the present petition were parties in O.S.No.100/1987 also.

¶51

Indisputably, the petition schedule property was also included in the plaint schedule property in O.S.No.100/1987. The main point in the aforesaid Original Suit was that the petitioner was not the son of the late Haneefa. But, all the parties have come to a compromise and agreed to allot A schedule property, in which the petition schedule building situates, to the 1^st respondent and B and C schedules to others. After Ext.A5 the 1^st respondent parted his right to the 2^nd respondent under Ext.A1 settlement deed and thereafter the respondents 1 and 2 jointly filed the Rent Control Petition seeking eviction.

¶52

RSA.400/16-E :8:

¶53

Now the petitioner contends that the 1^st respondent, being the brother of Haneefa, is not a legal heir under the Mahomedan Law. It is not disputed that the petitioner along with others was a consenting party to the compromise and all persons represented by lawyers. Even though the petitioner has contended that he has signed the compromise petition without understanding the contents of the petition, needless to say, the burden is heavy on the petitioner to prove it. But, no evidence had been adduced to substantiate the aforesaid contention. More over, it could be reasonably presumed that the parties have subscribed their signatures after understanding the contents of the compromise petition. Even though there is allegation of fraud and collusion, nothing brought out in evidence to discredit the same.

¶54

Admittedly, Ext.A5 compromise decree is still

¶55

in force. More over, Ext.A3 petition filed before the Sub Court is stated to have been dismissed, though the

¶56

RSA.400/16-E :9:

¶57

appeal is pending. The pendency of the appeal will not affect the validity of Ext.A5 compromise decree.

¶58

The petitioner is estopped from raising any contention challenging the validity of Ext.A5 compromise decree in a subsequent proceedings so long as the compromise decree stands in force. Thus, the petitioner is bound by the said compromise decree and the courts below are justified in finding so.

¶59

The second point is, whether the courts below can be justified in finding that Ext.A5 compromise decree is not a compulsorily registrable document. According to Section 17(2)(vi) of the Registration Act, a compromise decree passed by the court is not compulsorily registrable, except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceedings. In the instant case, Ext.A5 compromise decree shows that additional items of properties 7 to 11 were brought by way of subsequent amendments in the suit and thereby

¶60

RSA.400/16-E :10:

¶61

the entire properties including petition schedule property were incorporated in the compromise decree.

¶62

So the courts below are justified in finding that Ext.A5 compromise decree is not a compulsorily registrable document.

¶63

The third question is, whether the courts below are justified in finding that delivery of the property through court is not necessary to make title conferred by a compromise decree valid. This Court is of the view that as per the terms of the compromise decree the title has been vested with the parties to the compromise decree and delivery of the property is not necessary to make the title valid. The terms of compromise decree determines the rights of the parties and the title vests with the parties at the moment when the court passes the compromise decree in terms of the compromise and the delivery of the property is the consequential effect for the enforcement of decree only. In other words, delivery follows the decree and it is the result of the

¶64

RSA.400/16-E :11:

¶65

conferment of title by the decree. Therefore, the courts below are justified in finding that the delivery of the property through court is not necessary to make title conferred by the compromise decree valid.

¶66

Thus, there is no illegality or impropriety in any of the findings whereby the courts below dismissed the petitioner's claim over the petition schedule property. I do not find any reason to interfere with the findings of the courts below. Hence this Regular Second Appeal is dismissed.

¶67

All pending interlocutory applications will stand closed.

¶68

Sd/K.HARILAL, Judge.

¶69

okb

Ellias v. Muhammed Kishore

Case brief

What is this about?

What did the court decide?

Ellias v. Muhammed Kishore

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

C.P.Raghavan Nair Vs S.Abdul Razak

Ramakrishnan Vs Rajan

Sanjayan Vs Suma

Prabhavini Devi Vs Sudha

Illiyas Vs Mehabooba

Xavier Vs St.Rapheal'S Church