LALA SURAJ PRASAD Vs. BMAHESHWARI PRASAD

JUDGEMENT

(1.) THE legal plea pressed in this appeal is based on Section 92 of the Evidence Act. One Mathura Nath transferred to the plaintiff in 1912 a portion of a house containing a latrine. It was agreed that as long as the latrine was in existence the vendor should have a right of easement in respect of it. Subsequently the adjoining portion of the house was sold to the defendant. THE facts found by the Court below are that the latrine was afterwards removed by agreement of the parties from the portion of the house belonging to the plaintiff to the portion belonging to the defendant and that at the time when this change was effected, the plaintiff gave the defendant express permission to make a door on the side where the latrine had originally stood and to use this portion for passage of sweepers and flow of water. THE appellant contends, as he contended in the Court below, that this was an agreement varying the terms of the sale-deed of 1912 and could only be made by a registered instrument. THE Courts below have held, and, in my opinion, rightly, that when the latrine was removed from its original position the agreement contained in the sale-deed came to an end and that the defendant is not barred by any law from proving by oral evidence the new agreement which was then entered into. THE appellant raises a further point which was not raised in the Court below, namely, that the new agreement created an easement and that this could only be done by a registered instrument. This contention is negatived by the authority of Bhagwan Sahai V/s. Narsingh Sahai 3 Ind. Cas. 615 : A.L.J. 861 : 31 A. 612. In that case the Letters Patent Bench held that neither registration nor a written instrument was necessary for the creation of an easement. THE appeal, therefore, fails and I dismiss it under Order XLI, Rule 11, C.P.C.