the creation of a right of easement by grant is not such a transfer of ownership as is contemplated by S.54 of the Act.= Therefore, to my mind the document in question created no right in immovable property; and, only irrevocable permission was accorded under it to use the existing passage by granting licence so to say. Viewed thus, this court finds that the document in question does not require registration. Having regard to the facts and reasons, this Court holds that the order of the Court below is liable to be set aside. As a result, the trial Court is directed to admit the suit document in evidence provided the plaintiff pays the stamp duty and penalty, if any, payable on the said document as per the provisions applicable to the transaction of licence.
THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI
Civil Revision Petition no.261 of 2012
17-02-2016
Dwara Satyanarayana. Petitioner
Malladi Bhanumathi and 6 others . Respondents
Counsel for the Petitioner: Sri M.S.N. Prasad
Counsel for Respondents 1, 2 &7 : Sri T.S. Anand
Counsel for respondents 3 to 6 : none
<Gist :
>Head Note:
?Cases referred:
1.AIR 1929 Madras 79
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No.261 of 2012
ORDER:
This civil revision petition under Article 227 of the Constitution of
India
by the petitioner/plaintiff is directed against the orders dated 10.11.2011 of
the learned Principal Junior Civil Judge, Kovvur wherein and whereby the
learned Principal Junior Civil Judge refused to admit in evidence the document
dated 15.05.1996 tendered in evidence during the further examination in chief
of PW1 (the plaintiff) on the ground that the said document, which is
unregistered, cannot be admitted in evidence for want of registration.
2. I have heard the submissions of the learned counsel for the revision
petitioner/plaintiff (the plaintiff, for short) and the learned counsel for
the
respondents/defendants (the defendants, for short). I have perused the
material record including the copy of the document in question.
3. The facts, which fall for consideration, in brief, are as follows:
The plaintiff brought the suit against the defendants for declaration of
right in ABCDEF schedule passage [also shown in the plaint plan] to reach his
lands and for a consequential injunction restraining the defendants from
interfering with the plaintiffs peaceful possession and enjoyment of the right
in regard to the said passage and not to cause any obstructions for ingress and
egress and for carrying on agricultural produce through the passage to the
Southern side Vadapalli to Chandravaram road (punta). The defendants are
resisting the said suit. At trial, during the further examination in chief of
PW1,
the plaintiff tendered for marking the document dated 15.05.1996 in support of
his claim in regard to the plaint schedule passage. However, the learned
counsel for the defendants had raised an objection for marking the said
document on the ground that the said document discloses an easement by way
of passage and creates some interest in property, though no title and
ownership are given, and that the said document is inadmissible in evidence as
it is unregistered. In support of the said objection raised, he had placed
reliance on a decision in Hamir Ram v. Varisng Raimal [1999(1) ALT 18.4 (DN)
(OHC). On the other hand, the learned counsel for the plaintiff had submitted
that the transaction under the document is incapable of valuation and that the
contents of the document can be taken into consideration though the
document is unregistered. In support of his contentions, he had placed
reliance on the decision in Varghese Paul and others v. Narayanan Nair and
others [AIR 1999 Kerala 417]. Having heard the submissions of the learned
counsel for both the sides and having referred to the provisions of Sections
2(6)
and 17 of the Registration Act and following the ratio in the decision of Orissa
High Court in Hamir Rams case (supra), the trial Court had held that the
document in question created some interest in the property, that is, in regard
to the usage of passage and that, therefore, the document requires
registration; and that the document is a compulsorily registerable document.
The trial Court had accordingly upheld the objection raised on behalf of the
defendants and had refused to admit the said document in evidence.
4. Feeling aggrieved, the plaintiff filed this revision petition. It is
inter
alia contended on behalf of the plaintiff as follows: The trial Court had
erroneously held that the document in question requires registration without
properly considering the ratio in the decision in Varghese Paul cited on behalf
of the plaintiff and by wrongly applying the ratio in the decision of the Orissa
High Court in Hamir Rams case, which is inapplicable. The document in
question is not registerable much less compulsorily registerable under Section
17 of the Registration Act as under the said document only permission is given
to the plaintiff to use the passage for tractors, bullock carts, cattle and for
carrying on agricultural implements, but no right is created in the immovable
property comprised in the passage. Therefore, the provisions of the Indian
Registration Act, which require compulsory registration, are not applicable to
the document in question. The trial Court did not properly appreciate the
nature of the transaction encompassed in the document and also the provisions
of law and had arrived at an incorrect conclusion that the document requires
registration and that it is a compulsorily registerable document. The learned
counsel for the plaintiff placed reliance on the decision in Musunoori
Satyanarayana Murti v. Chekka Lakshmayya and others .
5. On the other hand, the learned counsel for the defendants while
supporting the findings of the trial Court had inter alia contended that the
suit
is filed for declaration in regard to the plaint schedule passage, which is
shown
in the plaint plan, and that in the suit for declaration, an easement in regard
to
a passage is claimed and that though under the document an easement in
regard to way or passage is created some interest in the immovable property is
also there and that though no title or ownership are given under the said
document in regard to the said passage, the document, as rightly held by the
Court below, is compulsorily registerable and that the court below has rightly
applied the ratio in the decision of the Orissa High Court as an easement by
way of passage creates some interest in the property but no title or ownership
in the same. He had finally urged that the document requires registration and
hence, the revision petition is liable to be dismissed.
6. In the decision in Musunoori Satyanarayana Murti, the issue is in regard
to the plaintiffs right to let out drainage water through the drainage channel
passing through the defendants fields and such right is based upon an
easementary right granted to the plaintiff under a document executed by the
father of the defendant and it is a letter. The Madras High Court noted that
under Section 6(c) of the TP Act an easement cannot be transferred apart from
the dominant heritage and that Section 54 of the TP Act taken along with
Section 6(c) would appear to contemplate the transfer of an existing easement
as distinguished from the creation of the imposition of a new easement and
that there is a clear distinction between the transfer of an existing easement
and the creation or grant of a new easement and that the transfer of an
existing easement is the act of the dominant owner and is inseparable from the
transfer of the dominant heritage, while the creation of a new easement is the
act of an owner imposing a burden on his property. On the above reasoning the
Madras High court held that the grant of an easement does not involve such a
transfer of ownership in immovable properties as is contemplated by Section 54
of the TP Act and hence, the said document does not require registration. In
the cited decision, the decision in Bhagwan Sahai v. Narasingh Sahiah [(1909)
31 ALL.612] was referred to, wherein it was held as follows:
It seems clear to me that the creation of a right of easement by grant is
not such a transfer of ownership as is contemplated by S.54 of the Act.
Where under that section an easement is transferred it must be so
transferred along with the dominant heritage. There is no other way of
transferring it and this arises by reason of the nature of the right. It exists
only for the benefit of the heritage and to supply its wants. There is
nothing in law which necessitates the creation of an easement being
evidenced by writing.
7. I have given detailed and thoughtful consideration to the facts and the
submissions. I have carefully gone through the contents of the document; as,
not nomenclature but the content of the document determines the nature of
the transaction.
8. The said document was executed on 15.05.1996 in favour of the plaintiff
by Krishnarao @ Krishnamurthy, S/o Satyanarayanamurthy, who is said to be
the father of the defendants 1 and 2. In this document, it is stated that the
said Krishnarao, the executant of the document, had self acquired the
properties in Rs.Nos.290/1, 276, 275/1 and 275/6 and that he had provided a
way to the Northern portion of his lands from Vadapalli Chandravaram punta
which is on the South and that the plaintiff Satyanarayana is provided way from
the said passage to the land sold to him i.e., land in S.No.275/1 and 275/6 to
go to his lands from Southern side Vadapalli to Chandravaram punta. It is
further stated in this document that through the said passage tractors, carts,
cattle and agricultural implements can be taken and for the same no objection
would be raised and that the document is executed with consent. The
document was signed by the said Krishnarao @ Krishnamurthy and was attested
by two witnesses and also bears the signature of the scribe. It was executed on
non judicial stamp paper of the value of Rs.100/-. A plain reading of the
document shows that already the executant of the document had provided a
right of way from a punta to his lands and that he had permitted the said
Satyanarayana to use the same passage to reach his land, which was sold to
him i.e., the land in S.No.275/1 and 275/6. Therefore, under this document,
in the well considered view of this Court, licence is granted to Satyanarayana,
the plaintiff, to use the same passage which was already in existence and
which was provided for the lands of the said Krishna Rao @ Krishnamurthy, the
executant of the document. Admittedly, no title or ownership over the said
passage is created under the document in favour of Satyanarayana, the
plaintiff, who is the beneficiary under the document. He was only permitted to
reach his lands through the said passage, which passage the executant of the
document has already provided for his lands. Therefore, to my mind the
document in question created no right in immovable property; and, only
irrevocable permission was accorded under it to use the existing passage by
granting licence so to say. Viewed thus, this court finds that the document in
question does not require registration. Though one of the contentions of the
defendants, who are objecting for marking of the document on the ground that
it requires registration, is also that the said document is a forged document,
that aspect need not be considered by this Court in this Revision petition as it
is for the trial Court to go into the said aspect at the appropriate stage, in
case
the document is eventually admitted in evidence and necessary evidence is
adduced by both the sides to prove and disprove the document.
9. Having regard to the facts and reasons, this Court holds that the order of
the Court below is liable to be set aside. As a result, the trial Court is
directed
to admit the suit document in evidence provided the plaintiff pays the stamp
duty and penalty, if any, payable on the said document as per the provisions
applicable to the transaction of licence.
10. In the result, the Civil Revision Petition is, accordingly, allowed.
There
shall be no order as to costs.
Miscellaneous petitions pending, if any, in this civil revision petition
shall stand closed.
__________________
M. SEETHARAMA MURTI, J
Date:17.02.2016
Civil Revision Petition no.261 of 2012
17-02-2016
Dwara Satyanarayana. Petitioner
Malladi Bhanumathi and 6 others . Respondents
Counsel for the Petitioner: Sri M.S.N. Prasad
Counsel for Respondents 1, 2 &7 : Sri T.S. Anand
Counsel for respondents 3 to 6 : none
<Gist :
>Head Note:
?Cases referred:
1.AIR 1929 Madras 79
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No.261 of 2012
ORDER:
This civil revision petition under Article 227 of the Constitution of
India
by the petitioner/plaintiff is directed against the orders dated 10.11.2011 of
the learned Principal Junior Civil Judge, Kovvur wherein and whereby the
learned Principal Junior Civil Judge refused to admit in evidence the document
dated 15.05.1996 tendered in evidence during the further examination in chief
of PW1 (the plaintiff) on the ground that the said document, which is
unregistered, cannot be admitted in evidence for want of registration.
2. I have heard the submissions of the learned counsel for the revision
petitioner/plaintiff (the plaintiff, for short) and the learned counsel for
the
respondents/defendants (the defendants, for short). I have perused the
material record including the copy of the document in question.
3. The facts, which fall for consideration, in brief, are as follows:
The plaintiff brought the suit against the defendants for declaration of
right in ABCDEF schedule passage [also shown in the plaint plan] to reach his
lands and for a consequential injunction restraining the defendants from
interfering with the plaintiffs peaceful possession and enjoyment of the right
in regard to the said passage and not to cause any obstructions for ingress and
egress and for carrying on agricultural produce through the passage to the
Southern side Vadapalli to Chandravaram road (punta). The defendants are
resisting the said suit. At trial, during the further examination in chief of
PW1,
the plaintiff tendered for marking the document dated 15.05.1996 in support of
his claim in regard to the plaint schedule passage. However, the learned
counsel for the defendants had raised an objection for marking the said
document on the ground that the said document discloses an easement by way
of passage and creates some interest in property, though no title and
ownership are given, and that the said document is inadmissible in evidence as
it is unregistered. In support of the said objection raised, he had placed
reliance on a decision in Hamir Ram v. Varisng Raimal [1999(1) ALT 18.4 (DN)
(OHC). On the other hand, the learned counsel for the plaintiff had submitted
that the transaction under the document is incapable of valuation and that the
contents of the document can be taken into consideration though the
document is unregistered. In support of his contentions, he had placed
reliance on the decision in Varghese Paul and others v. Narayanan Nair and
others [AIR 1999 Kerala 417]. Having heard the submissions of the learned
counsel for both the sides and having referred to the provisions of Sections
2(6)
and 17 of the Registration Act and following the ratio in the decision of Orissa
High Court in Hamir Rams case (supra), the trial Court had held that the
document in question created some interest in the property, that is, in regard
to the usage of passage and that, therefore, the document requires
registration; and that the document is a compulsorily registerable document.
The trial Court had accordingly upheld the objection raised on behalf of the
defendants and had refused to admit the said document in evidence.
4. Feeling aggrieved, the plaintiff filed this revision petition. It is
inter
alia contended on behalf of the plaintiff as follows: The trial Court had
erroneously held that the document in question requires registration without
properly considering the ratio in the decision in Varghese Paul cited on behalf
of the plaintiff and by wrongly applying the ratio in the decision of the Orissa
High Court in Hamir Rams case, which is inapplicable. The document in
question is not registerable much less compulsorily registerable under Section
17 of the Registration Act as under the said document only permission is given
to the plaintiff to use the passage for tractors, bullock carts, cattle and for
carrying on agricultural implements, but no right is created in the immovable
property comprised in the passage. Therefore, the provisions of the Indian
Registration Act, which require compulsory registration, are not applicable to
the document in question. The trial Court did not properly appreciate the
nature of the transaction encompassed in the document and also the provisions
of law and had arrived at an incorrect conclusion that the document requires
registration and that it is a compulsorily registerable document. The learned
counsel for the plaintiff placed reliance on the decision in Musunoori
Satyanarayana Murti v. Chekka Lakshmayya and others .
5. On the other hand, the learned counsel for the defendants while
supporting the findings of the trial Court had inter alia contended that the
suit
is filed for declaration in regard to the plaint schedule passage, which is
shown
in the plaint plan, and that in the suit for declaration, an easement in regard
to
a passage is claimed and that though under the document an easement in
regard to way or passage is created some interest in the immovable property is
also there and that though no title or ownership are given under the said
document in regard to the said passage, the document, as rightly held by the
Court below, is compulsorily registerable and that the court below has rightly
applied the ratio in the decision of the Orissa High Court as an easement by
way of passage creates some interest in the property but no title or ownership
in the same. He had finally urged that the document requires registration and
hence, the revision petition is liable to be dismissed.
6. In the decision in Musunoori Satyanarayana Murti, the issue is in regard
to the plaintiffs right to let out drainage water through the drainage channel
passing through the defendants fields and such right is based upon an
easementary right granted to the plaintiff under a document executed by the
father of the defendant and it is a letter. The Madras High Court noted that
under Section 6(c) of the TP Act an easement cannot be transferred apart from
the dominant heritage and that Section 54 of the TP Act taken along with
Section 6(c) would appear to contemplate the transfer of an existing easement
as distinguished from the creation of the imposition of a new easement and
that there is a clear distinction between the transfer of an existing easement
and the creation or grant of a new easement and that the transfer of an
existing easement is the act of the dominant owner and is inseparable from the
transfer of the dominant heritage, while the creation of a new easement is the
act of an owner imposing a burden on his property. On the above reasoning the
Madras High court held that the grant of an easement does not involve such a
transfer of ownership in immovable properties as is contemplated by Section 54
of the TP Act and hence, the said document does not require registration. In
the cited decision, the decision in Bhagwan Sahai v. Narasingh Sahiah [(1909)
31 ALL.612] was referred to, wherein it was held as follows:
It seems clear to me that the creation of a right of easement by grant is
not such a transfer of ownership as is contemplated by S.54 of the Act.
Where under that section an easement is transferred it must be so
transferred along with the dominant heritage. There is no other way of
transferring it and this arises by reason of the nature of the right. It exists
only for the benefit of the heritage and to supply its wants. There is
nothing in law which necessitates the creation of an easement being
evidenced by writing.
7. I have given detailed and thoughtful consideration to the facts and the
submissions. I have carefully gone through the contents of the document; as,
not nomenclature but the content of the document determines the nature of
the transaction.
8. The said document was executed on 15.05.1996 in favour of the plaintiff
by Krishnarao @ Krishnamurthy, S/o Satyanarayanamurthy, who is said to be
the father of the defendants 1 and 2. In this document, it is stated that the
said Krishnarao, the executant of the document, had self acquired the
properties in Rs.Nos.290/1, 276, 275/1 and 275/6 and that he had provided a
way to the Northern portion of his lands from Vadapalli Chandravaram punta
which is on the South and that the plaintiff Satyanarayana is provided way from
the said passage to the land sold to him i.e., land in S.No.275/1 and 275/6 to
go to his lands from Southern side Vadapalli to Chandravaram punta. It is
further stated in this document that through the said passage tractors, carts,
cattle and agricultural implements can be taken and for the same no objection
would be raised and that the document is executed with consent. The
document was signed by the said Krishnarao @ Krishnamurthy and was attested
by two witnesses and also bears the signature of the scribe. It was executed on
non judicial stamp paper of the value of Rs.100/-. A plain reading of the
document shows that already the executant of the document had provided a
right of way from a punta to his lands and that he had permitted the said
Satyanarayana to use the same passage to reach his land, which was sold to
him i.e., the land in S.No.275/1 and 275/6. Therefore, under this document,
in the well considered view of this Court, licence is granted to Satyanarayana,
the plaintiff, to use the same passage which was already in existence and
which was provided for the lands of the said Krishna Rao @ Krishnamurthy, the
executant of the document. Admittedly, no title or ownership over the said
passage is created under the document in favour of Satyanarayana, the
plaintiff, who is the beneficiary under the document. He was only permitted to
reach his lands through the said passage, which passage the executant of the
document has already provided for his lands. Therefore, to my mind the
document in question created no right in immovable property; and, only
irrevocable permission was accorded under it to use the existing passage by
granting licence so to say. Viewed thus, this court finds that the document in
question does not require registration. Though one of the contentions of the
defendants, who are objecting for marking of the document on the ground that
it requires registration, is also that the said document is a forged document,
that aspect need not be considered by this Court in this Revision petition as it
is for the trial Court to go into the said aspect at the appropriate stage, in
case
the document is eventually admitted in evidence and necessary evidence is
adduced by both the sides to prove and disprove the document.
9. Having regard to the facts and reasons, this Court holds that the order of
the Court below is liable to be set aside. As a result, the trial Court is
directed
to admit the suit document in evidence provided the plaintiff pays the stamp
duty and penalty, if any, payable on the said document as per the provisions
applicable to the transaction of licence.
10. In the result, the Civil Revision Petition is, accordingly, allowed.
There
shall be no order as to costs.
Miscellaneous petitions pending, if any, in this civil revision petition
shall stand closed.
__________________
M. SEETHARAMA MURTI, J
Date:17.02.2016
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