Bombay High Court
Pandhari S/O Gopala Deogade vs Motiram Jayram Deogade (Dead) ... on 18 January, 2018
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.208 OF 2017
APPELLANT: Pandhari S/o Gopala Deogade, Aged 55
(PLAINTIFF) years, Occ. Cltifvator, R/o Village at
Besur, Tah. Bhiwapur, Dist. Nagpur.
-VERSUS-
RESPONDENTS: Motiram Jayram Deogade, since dead by
DEFENDANTS his Lrs:
1. Smt. Devka wd/o Motiram Deogade,
Aged 52 years, Occ. Household,
2. Sohan S/o Motiram Deogade, Aged 37
years, Occ. Post-Master,
Both R/o Village at Besur, Tah.
Bhiwapur, Dist. Nagpur.
3. Narhari S/o Motiram Deogade, Aged 50
years, Occ. Doctor, R/o Wadi, Tah.
Hingna, Dist. Nagpur.
Present address Matoshri Nagar,
Gurukul Colony, Near Varun Kirana
Stores, Wanadontgari, Tah. Hingna,
Dist. Nagpur.
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4. Sau. Vidya w/o Chhannaji Patil, Aged 32
years, Occ. Household, R/o Village at
Kanhva, Tah. Umred, Dist. Nagpur.
Shri P. A. Markandeywar, Advocate for the appellant.
Shri N. N. Kawale, Advocate for the respondent Nos.1 to 4.
CORAM: A.S. CHANDURKAR, J.
DATED: JANUARY 18, 2018.
ORAL JUDGMENT :
1. Admit.
2. Heard finally on the following substantial question of
law:
"Whether creation of a right of easement by an
agreement would be required to be registered under the
Registration Act, 1908 and such right of easement would result in
transfer of ownership under the Transfer of Property Act, 1882?"
3. The appellant is the original plaintiff who had filed suit
for declaration that he had right of way as indicated in the plaint
map alongwith a prayer for perpetual injunction. According to the
plaintiff, his family was related to the family of the defendant.
Both families were owning adjoining lands. On the request made
by the defendant, the plaintiff's father had given open land
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admeasuring 20 ft. by 5 ft. to the defendant. Due to said favour,
on 23-2-1982 the said defendant had executed a
Kabuliyatnama/undertaking and granted the plaintiff right to use
as a bullock cart way a strip admeasuring 10 ft. by 20 ft. It was
also stated that he would not object to the plaintiff's user of the
way and that he would not make any construction thereon.
However, subsequently the defendant did not abide by that
undertaking and sought to make construction on the suit way.
Hence, the suit came to be filed.
4. In the written statement filed by the legal heirs of the
defendant, it was denied that any such right of way was given to
the plaintiff by the original defendant. The execution of
Kabuliyatnama on 23-2-1982 was denied and it was asserted that
said document was a sham and forged document.
5. After the parties led evidence, the trial Court accepted
the case of the plaintiff and decreed the suit. It held that as per
the Kabuliyatnama (Exhibit-24), the plaintiff had been granted
easementary right to use the suit way. The said document was
genuine and it did not require registration. Hence, the plaintiff was
entitled for relief. The first appellate Court, however, reversed that
decree on the ground that the said document was in the nature of
a permanent lease and was required to be registered. As it was not
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registered, no right could be claimed on that basis. Accordingly,
the appeal was allowed and the suit came to be dismissed. Being
aggrieved, the plaintiff has filed the present second appeal.
6. Shri P. A. Markandeywar, learned Counsel for the
appellant submitted that the first appellate Court committed an
error in holding that the Kabuliyatnama required registration.
According to him, the document dated 23-2-1982 merely granted
right of way by way of easement in favour of the plaintiff. The
ownership of the land remained with the defendant and it was
only undertaken that the defendant and his legal heirs would not
obstruct use of the bullock cart way by the plaintiff. Referring to
the provisions of Section 54 of the Transfer of Property Act, 1882
as well as provisions of Section 8 of the Indian Easements Act,
1882, it was submitted that the Kabuliyatnama did not require any
registration. He placed reliance on the decision in Musunoori
Satyanarayana v. Chekha Lakshmayya and others AIR 1929 Madras
79 in that regard. It was thus submitted that the appellate Court
committed an error in holding that the transaction was in the
nature of a permanent lease and therefore, required registration.
7. On the other hand, Shri N. N. Kawle, learned Counsel
for the respondents supported the impugned judgment. According
to him, the first appellate Court rightly found that the
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Kabuliyatnama required registration and in absence of registration,
the right of way could not be claimed. As a permanent right had
been granted to the plaintiff to use the suit way as alleged, the
document in question required registration. It was submitted that
the said document was forged and fabricated and could not be
relied upon. He placed reliance on the decision in Ghanshyam
Sarda Vs. Sashikant Jha and others 2017 (3) Mh.L.J 19.
8. I have heard the learned Counsel for the parties at
length and I have perused the impugned judgment. The trial Court
after considering the evidence on record came to the conclusion
that on 23-2-1982 the original defendant executed the
Kabuliyatnama and undertook not to obstruct the plaintiff from
using the bullock cart way. It further held that the Kabuliyatnama
did not require any registration and therefore, it was not void
under Section 17 of the Registration Act, 1908. The first appellate
Court, however, has held that by the said document there was
exchange of immoveable properties and as a permanent right of
way was created, the transaction was in the nature of a permanent
lease. It thus required registration.
9. Perusal of the Kabuliyatnama (Exhibit-24) indicates
that the defendant has stated therein that while undertaking
construction of his house, his cousin - the plaintiff had given him
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area admeasuring 20 ft. by 5 ft. Hence, the defendant granted
him right of way to take his bullock cart from the area
admeasuring 20 ft. by 10 ft. The right of way would be available to
the plaintiff and his legal heirs. From the aforesaid document, it is
clear that the ownership of the defendant to the extent of said way
of 20 ft. by 10 ft. had not been transferred in favour of the
plaintiff. He had only been given a right to use that way and also
to take his bullock cart from that way. He had undertaken not to
obstruct the plaintiff and his legal heirs. It is therefore, clear that
without transferring ownership of the strip of land admeasuring
20 ft. by 10 ft. a right of way was created in favour of the plaintiff
and thus easementary right was given to the plaintiff.
10. Under provisions of Section 6(c) of the Transfer of
Property Act, 1882 an easement cannot be transferred apart from
the dominant heritage. In absence of any right in the property
being transferred, easement can also be granted orally. If that be
so there is no requirement that if any easement is granted by a
document, same should be duly registered.
In Musunoori Satyanarayana (supra), it was held that
an agreement granting easementary right did not require
registration as there was no transfer of ownership as contemplated
by Section 54 of the Transfer of Property Act, 1882. I find that the
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aforesaid statement of law applies to the facts of the present case.
Without transfer of ownership only a right of way was recognized
by the defendant in favour of the plaintiff. The first appellate
Court committed an error when it held that there was exchange of
immoveable property. The plain reading of the document at
Exhibit-24 does not indicate any such exchange of immoveable
properties. There is also no creation of any permanent lease. It is
only the right to use the suit way. Hence, the only premise on
which the first appellate Court reversed the decree passed by the
trial Court cannot be sustained.
11. It is to be noted that this is the only ground on which
the judgment of the trial Court has been set aside. The other
aspects of the matter and the grounds raised by the defendant as
to genuineness of that document have not been considered by the
first appellate Court. The plea in that regard has been raised by the
defendant in his written statement and was also taken in the
memorandum of appeal filed under Section 96 of the Code of Civil
Procedure, 1908. For said purpose, I find it necessary to direct the
first appellate Court to reconsider the appeal on its own merits and
in the light of defence raised by the defendant to the document at
Exhibit-24.
12. Accordingly, the following order is passed:
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ORDER
(1) The substantial question of law is answered by holding
that as the Kabuliyatnama at Exhibit-24 merely granted
easementary right it did not require any registration under the
Registration Act, 1908. The proceedings are however remanded to
the first appellate Court to consider the challenge to that
document as raised by the defendant in his written statement and
the grounds of appeal. The parties shall appear before the
Appellate Court on 20-2-2018.
(2) The appellate Court shall decide the appeal on its own
merits and in accordance with law.
(3) It is clarified that the aspect of registration of the
document at Exhibit 24 is not required to be gone into by the first
appellate Court in view of the answer given to the substantial
question of law.
(4) The second appeal is allowed in aforesaid terms with
no order as to costs.
JUDGE
/MULEY/
