VARGHESE PAUL Vs. NARAYANAN NAIR

JUDGEMENT

(1.) The appellant is assailing the concurrent finding of the courts below dismissing a suit for declaration and injunction built up on Ext. A1 agreement between the plaintiffs and defendants. Ext. A1 agreement is executed by both the parties. It is concerning a passage of 8 feet width leading to the building on either sides of the pathway and construction of a staircase by the defendants adjoining to the building of the plaintiffs in such a manner as it could be used by both the parties leaving again 4 feet width passage on the side of the staircase for ingress and egress for both the parties to the rear portion of the properties. The suit was dismissed by the Trial Court accepting the definite case of the defendants that Ext. A1 was required to be registered in terms of S.I7(1)(b) of the Registration Act, 1908. As it was not thus registered it was not admissible in evidence and the parties could not put up any claim in terms of the agreement under S.49 of the said Act. The appeal by the plaintiffs also failed. Though the appellate court did not come to the conclusion on any of the contentions discussed in each of the paragraphs of the judgment, the appeal was dismissed stating that in the light of the discussions made in the judgment the appellate judge had "difficulty to disagree with the findings of the learned Munsiff in this case". It is in the above circumstances this appeal has been filed mainly raising a substantial question of law as to whether Ext. A1 requires registration in terms of S.17(1)(b) of the Registration Act, 1908. The facts necessary for the decision on the question of law thus raised are as follows:

(2.) On the eastern side of M.C. Road both the plaintiffs as well as the defendants had properties. The plaintiffs had already constructed a building. The property belonging to the defendants was on the southern side of the property belonging to the plaintiffs. The defendants proposed certain constructions adjoining to the northern boundary of their land. This gave rise to a dispute regarding construction. The plaintiffs obstructed the construction. The dispute was resolved by entering into Ext. P1 agreement The parties 1 to 3 in the agreement are the defendants whereas parties 4 and 5 to the said agreement are the plaintiffs. Both the parties kept a signed copy each of the agreement as is revealed by Ext. A1 itself. Ext. A1 provided that there was an 8 feet width pathway on the northern side of the property of the defendants and on the southern side of the property of the plaintiffs, in other words, in between the properties of the parties. This pathway is more described in the evidence given by PW 1 that the pathway with 6 feet width belongs to the plaintiffs and the remaining 2 feet width pathway belongs to the defendants. The agreement further provided that the defendants shall put up a staircase having a width of 4 feet adjoining to the existing building of the plaintiffs in such a manner that it shall also lead to the building to put up by the defendants so that the staircase can be used by both the parties. It was also provided that the staircase shall be constructed in such a manner that on the side of the staircase a 4 feet width passage shall be left open to be used by both the parties to reach the rear portions of their properties. The parties had an undertaking that 8 feet width passage will have 50 feet length as revealed in the schedule to the plaint. The agreement thus resolved me dispute between the parties with respect to the construction. The agreement thus created a right for both the parties in the strip of land having 8 feet. Both me parties had mutually given and taken rights in the said strip of 1 and by means of the said document. As already mentioned above, execution of the agreement is not in dispute. But, me plaintiff later found that the construction had been undertaken by the defendants without providing the 8 feet width common passage and in violation of the agreement. The defendants did not construct the staircase as agreed in Ext. Al. The defendants constructed the building touching the northern boundary of their land. It is in the above circumstances the suit was filed seeking a declaration that the defendants were liable to undertake construction only after maintaining 8 feet width pathway and seeking a prohibitory injunction to restrain construction over the common pathway having 8 feet width and also seeking a mandatory injunction to demolish the construction made in the said 8 feet width pathway. Though the agreement was admitted, the defendants put up a plea that the said document was liable to be registered in terms of S.17(1)(b) of the Registration Act as it creates a right over an immovable property in the manner as a right of way and there was extinguishment of right of the respective parties to the extent the other party was allowed such right. The said right of way is immovable right as per S.2(6) of the Registration Act and any document creating right over in or to an immovable property shall have registration in terms of S.17(1)(b). The Trial Court accepted this contention mainly relying on Ext. B3 document which is in respect of a neighbouring strip of land executed on the same day on which Ext. A1 was executed. Ext. B3 was introduced in evidence to canvass the value of the land covered by that and to contend that the same value of land shall be attributed to the piece of land covered by the common passage and that the value exceeded rupees one hundred. Accordingly, applying S.49, the Trial Court did not accept Ext. A1 in evidence and the plaintiff's case fell down as Ext. A1 was not admitted in evidence. The appellate court also followed the same suit. The crux of the case will thus mainly depend upon the answer to the question of law as to whether Ext. A1 is required to be registered or not.

(3.) S.17 of the said Act describes about the documents of which registration is compulsory and provides in clause (b) that a document in the nature of "other non testamentary instrument which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property" (emphasis supplied), is required to be registered. A reading of Ext. A1 as mentioned above certainly creates certain right in favour of the parties and also extinguishes certain rights on the third parties to the extent that has been created on the other. But, the issue is merely because there is such a document creating/extinguishing rights over immovable property, does not require to be registered in terms of S.17(1)(b) unless it is shown that the value of the right, title or interest so created or extinguished, is "of the value of one hundred rupees and upwards" In other words, the value is relatable not to the land or immovable property whereto or wherefrom such right is created or extinguished; but with reference to "any right, title or interest", whether vested or contingent", so created or extinguished. So, the value of the right or interest that has been created or extinguished is to be borne in mind while considering whether the document like Ext. A1 is required to be registered or not. Though in the Written Statement it had been contended that the document is required to be registered in terms of S.17 of the Registration Act, what is the value of the right created or extinguished in terms of Ext. A1 is not specifically pleaded. On the other hand, the nature of the evidence tendered by the defendants in support of the contention in the Written Statement is with reference to the value of the land over which such right is created or from which it has been extinguished. Thus, the defendants were making a plea based on S.17 not with reference to the value of the right or title created or extinguished, but with reference to the value of the immovable property on or from which any such right is created or extinguished. When the defendants thus did not arise a plea with reference to the value of the right or interest so created or extinguished, the Trial Court should not have on the strength of Ext. B3 which proves only the value of the land, jumped into the conclusion that the document is registerable in terms of S.17(1)(b). The Trial Court and the appellate court ought to have considered the nature of the right created or extinguished in terms of Ext. A1 while deciding whether the document was required to be registered or not.