Second Appeal No.208 of 2017

18th January, 2018.

Petitioner Counsel: Shri P.A. MARKANDEYWAR
Respondent Counsel: Shri N.N. KAWALE

Cases Cited:
Musunoori Satyanarayana Vs. Chekha Lakshmayya and others, AIR 1929 Mad. 79 [Para 6,10]
Ghanshyam Sarda Vs. Sashikant Jha and others, 2018 ALL SCR 255=2017(3) Mh.L.J 19 [Para 7]

JUDGMENT

JUDGMENT :- 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 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 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 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 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 : [2018 ALL SCR 255].

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 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 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:

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.

Appeal allowed.