Sohan Lal S/O Lalman (Deceased) ... vs Raj Kumar S/O Khacheru
2013 Latest Caselaw 2705 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 271 of 2010
 

 
Appellant :- Sohan Lal S/O Lalman (Deceased) And Others
 
Respondent :- Raj Kumar S/O Khacheru
 
Counsel for Appellant :- Vinod Swarup,Y.S. Bohra
 
Counsel for Respondent :- Vinod Sinha,Mahesh Sharma,Mukesh Sharma
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Y.S. Bohra, learned counsel for the appellants and Sri Mukesh Sharma, learned counsel for respondent.

2. The substantial questions of law formulated in this appeal are:

"(1) Whether suit in question for easementary rights was barred by Section 15 of Indian Easements Act, 1882?

(2) Whether, the document dated 25.8.1958 (Paper No. 86-A) creates any right, title or interest and was, therefore, required registration, and, in absence of its registration, was inadmissible in evidence and, therefore, findings of Courts below are wholly illegal and perverse?

(3) Whether the document dated 25.08.1958 (Paper No. 86-A) creates a license or a right of easement and the same is revocable by Smt. Kasturi Devi?

(4) Whether Smt. Kasturi Devi had a right to abandon the right of easement and close her door and by executing document dated 18.05.1989 (Paper No. 128-A) withouth any consent of her daughters and the findings in this regard by the Courts below are wholly illegal?"

3. The plaint case set up was that plaintiff is the owner of property shown by words "DEFG" shown at the bottom of plaint (hereinafter referred to as the "disputed property") which was purchased by plaintiff vide three sale deeds dated 19.06.1989, 20.07.1989 and 12.05.1992. The house of Sri Khacheru Mal, father of plaintiff is in the south of disputed property. On the north-west side there is a common Sahan shown as "ABCD" wherein door of plaintiff's house open and plaintiff keeps his egress and ingress through said door. The aforesaid house is there for the last 50 years at the time of filing of suit, as also the door and the same used to be enjoyed for egress and ingress as a matter of right using the portion "JKLDA" as a common passage. Earlier, on the land "ABCD" their existed a door of Ram Gopal. The aforesaid land originally belong to Sri Lalman son of Sri Behari Lal. Both executed an agreement on 25.08.1959 wherein the land "ABCD" was decided to be used as Sahan by Ram Gopal and for his egress and ingress to his house. Land to the east of "ABCD" was given to Lalman in lieu of aforesaid Sahan. Lalman constructed his Abadi to the west of "ABCD" and Sahan and to be used by Ram Gopal. There was a Naali also from the house, opening in the Sahan. The defendants, however, started threatening plaintiff to close the door and also threatened to raise construction over Sahan, "ABCD", though they had no such right and hence plaintiff instituted suit claiming permanent injunction against defendants restraining them from interfering in using land "ABCD" as Sahan, and land "JKLDA" as Rasta, closing the door "DM" as shown in the map or by closing Naali or raising any construction over "ABCD" in any manner. A mandatory injunction also sought directing the defendants to remove wall placed by them at "DN" and to remove tubewell from the land "ABCD" within the time, as directed by this Court and also to remove the handpump or construction raised on "ABCD" and "JKLDA".

4. The suit was contested by defendants by filing written statement and additional written statement denying such right as asserted by plaintiff over the land in dispute.

5. The plaintiff filed documents, namely agreement dated 25.08.1958 as paper No. 86-A and defendants filed document dated 18.05.1989 as paper No. 128-A in support of his claim.

6. The Trial Court formulated seven issues but for the purpose of present case, issues 1, 2 and 6 are relevant and read as under:

^^1& D;k oknh dks dksbZ vf/kdkj Hkwfe ,0ch0lh0Mh0 o ts0ds0,y0Mh0,0 tSlk uD'kk okni= esa vafdr gS dks crkSj jkLrk ;k ukyh iz;ksx djus dk vf/kdkj izkIr gS\

2& D;k izfroknh us nhokj Mh0,e0 nkSjku okn fcuk vf/kdkj yxk yh gSA ;fn gkW rks izHkko\

6& D;k nkSjku okn izfroknh us fookfnr Hkwfe ij dksbZ fuekZ.k dk;Z fd;k gS ;fn gka rks mldk izHkko\^^

"1. Whether the Plaintiff has right to use land shown as ABCD and JKLDA in the sitemap of the plaint as path or drain.

2. Whether the Defendant has without having any right erected any wall marked as DM, during pendency of the suit? If yes, its effect.

6. Whether the Defendant has undertaken any construction work on the disputed land during the pendency of the suit. If yes, its effect."

(English translation by the Court)

7. The Trial Court held that the agreement dated 25.08.1958, (paper No. 86-A) only resulted in giving right of passage to parties and, therefore, its registration was not necessary. However, in respect to paper No. 128-A it held that the said document was not signed by other co-owners of property, therefore, mere consent for closing the door, was not biding, and would give no benefit to defendants. The Trial Court decided issues 1 and 2 in favour of plaintiff and issue 6 against defendants. The suit was decreed partly vide judgment dated 29.11.2005.

8. Thereagainst the plaintiff preferred Civil Appeal No. 322 of 2005 and defendants also filed their cross-objection under Order 41 Rule 22. The appeal and cross-objection were decided by Lower Appellate Court vide judgment and decree dated 09.10.2009 by modifying Trial Court's judgment and decree. Now this second appeal has been preferred by defendants to the extent, injunction has been granted by courts below against defendants.

9. Sri Bohra, learned counsel for appellants, contended, that paper No. 128-A was neither an agreement nor a document for transfer of property conferring any right, upon the parties but it was a document, executed by Smt. Kasturi wife of late Ram Gopal, father of plaintiff, wherein she has reiterated certain fact transaction which had already accomplished in respect of property in dispute. Neither there was any occasion to construe the aforesaid document as if it has transferred title of any of the property of plaintiff to defendants nor it creates any right by itself but its contents were admissible in evidence so much so they recognise certain actions which had already accomplished like closure of door on the western side, removal of wall in which the door was constructed and wall of defendants appellants already allowed to be constructed. Besides, it surrenders the right of user only with regard to that there shall not be any exit on the side of defendants but the Naali shall continue to remain open.

10. He further contended that aforesaid document was executed by plaintiff who own the property in dispute, i.e., before execution of earliest sale deed, in favour of plaintiff, and that being so, no alleged easementary rights were acquired by plaintiff at the time when sale deeds dated 19.06.1989, 20.07.1989 and 12.05.1992 were executed. He further contended that easementary right cease to be enjoyed for more than two years at the time when suit was filed and, therefore, injunction founded on such easementary right was barred by Section 15 of the Indian Easements Act, 1882 (hereinafter referred to as the "Act, 1882").

11. Sri Mukesh Sharma, learned counsel appearing on behalf of plaintiff-respondent supported the judgment of courts below on the basis of reasoning contained therein.

12. During the course of arguments both the learned counsels for the parties could not dispute that so far as agreement dated 25.08.1958 is concerned, i.e., Paper No. 86-A, from its bare perusal, it is evident that there is a transfer of property from one party to another, may be by mutual settlement or agreement but once that is so, it was registrable under Section 17 of Indian Registration Act, 1908 (hereinafter referred to as the "Act, 1908") and since the aforesaid document was not registered, it was not admissible in evidence by virtue of Section 47 of Act, 1908. There is no transfer of mere right of usage for passage over the property but an interest has been created in the property and also transfer thereof by agreement dated 25.08.1958. Therefore, it was compulsorily registrable and it cannot be said to be a document conferring, merely, a licence or easemenatary rights upon any of the parties or inter se between the parties.

13. Question No. 2, therefore, is answered in affirmative holding that document dated 25.08.1958, paper No. 86-A was compulsorily registrable and it was inadmissible in evidence being unregistered, hence the findings recorded by courts below relying therein are illegal and cannot be sustained.

14. Question No. 3 also stands answered from the above discussion holding that aforesaid agreement does not create a mere licence or right of easement and was not revocable by executant in such manner.

15. Now I propose to consider question No. 1 and 4 simultaneously. It is always open to a person enjoying certain rights to surrender the same or not to assert the same. After the death of Sri Ram Gopal, his wife became head of family. The deceased left four daughters and a son, besides widow. The document paper No. 128-A dated 18.05.1989 written by Ram Gopal's widow, namely, Smt. Kasturi did not relinquish, surrender or transfer any property in anybody's favour but only recognises certain act/transactions/constructions or removal already accomplished. The document reads as under:

^^[email protected],

¼LVkEi isij ikap :i;s½

eSaus vius edku dk njoktk tks ifPNe dks lksguyky dh txg esa gksdj [kqyrk gS cUn dj fn;k gSA vkSj njokts okyh nhokj dks [kRe dj fn;k gSA vkSj ml ls ifPNe dks lksgu yky dh nhokj cuok nh gS tks budh vkSj nhoky ds esy esa gSA vc esajk dksbZ fudkl lksgu yky dh rjQ ugha jgsxk exj ikuh dh eksjh [kqyh jgsxh vkilh jtkeUnh ls ;g bdjkjukek fy[k fn;k fd lun jgsA

fu0va0 dLrwjh dLrwjh iRuh

fu0va0 iRuh Lo0 jkexksiky

ys[kd fu0 dSykou

lq[kohj flag Mk0 dSykou

iq= 'ksj flag ft0 cqyUn'kgj

dSykou

18&5&89^^

"128/A

(Five Rupees Stamp Paper)

I have closed my house door that opens westwards in Sohanlal's space and have demolished the door wall and to its west I have got constructed Sohanlal's wall connecting to his other walls. Now none of my exit points will remain in Sohanlal's side but water drainage will remain open. An agreement to this effect has been written with mutual consent so that it may serve as a certificate if there be such need."

 
	Thumb Impression Kasturi		Kasturi
 
	Thumb Impression			w/o Late Ramgopal
 
Writer						R/o Kailavan
 
Sukhveer Singh					P.O. Kailavan
 
S/o Sher Singh					Dist. Bulandshahr
 
Kailavan
 
18.05.89" (English translation by the Court)
 

 

16. It is not the case of plaintiff that whatever has been stated therein had not already been done or that they had no notice about it or asserted their rights immediately thereafter for undoing what has already been done. The aforesaid document, therefore, was neither compulsorily registrable nor it is such an agreement, asserting or affecting any of the rights of individual which is required to be signed by all the co-sharers but since it recognises certain facts which had already accomplished, this document was admissible in evidence only for the purpose as to whether those things or actions have already taken place or not. None of the courts below have looked into this aspect of the matter that whatever has been said to have been done or undone in paper No. 128-A was a statement of fact. In fact both the courts below have simply ignored aforesaid document on the ground that it is an agreement and having not been signed by other co-owners, it could not have been looked into which is incorrect.

17. Without going into further discussion even if I proceed on the basis that the ownership rights could not have been affected by Smt. Kasturi, one of the co-owner, without consent and signature of others, that would be wholly irrelevant for the present case for the reason that here the suit was instituted for claiming easementary rights, i.e., right of passage etc. The document (paper No. 128-A) only shows an obstruction in respect of such rights which had accrued due to certain construction etc., raised or removed. These were the facts, already accomplished, and this accomplishment has been recited in the aforesaid document. If these facts are correct, it is evident that alleged easementary rights became incapable of enjoyment or stood surrendered or in any case stood obstructed. Such obstruction has continued for more than two years, particularly at the time when suit was instituted. In that view of the matter suit for easementary rights was barred by Section 15 of Act, 1882.

18. The questions no. 1 and 4, therefore, are answered accordingly and in view thereof the judgements in question rendered unsustainable.

19. In the result, the appeal is allowed. The impugned judgements dated 29.11.2005 passed by Trial Court in Original Suit No. 398 of 1992 and 09.10.2009 passed by Lower Appellate Court in Civil Appeal No. 322 of 2005, are hereby set aside. The Original Suit No. 398 of 1992, consequently, stands dismissed.

20. No costs.

Order Date :- 24.05.2013

AK