Karnataka High Court
Mr Victor Sequeira S/O Lawrence ... vs Mr M Suresh Kamath S/O M Rathnakar Kamath on 7 December, 2010
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 0 ?"'DAY 01: DECEMBER,-« K
EEEoRE
THE HON'BLE MR. JUSTICE :§NAND:E'B4i*{_§A'RE'I3f3Yo
REGULAR SECOND APPEALNo._ :}2i0o9EEE
BETWEEN:
Mr. Victor Sequefra V
S/o Lawrencc: __
Since dead 4by'»v§1isi1f_L_;;Rs.:_'
1. ,.M-r.s., Voilégt i:Sequ-o'1.ra ' N'
W/o_ Late \_[iC.to1'~ S_éq;_1ei_ra_-
"Aglcéd aboutfir) y3;iI'S,V'x
2. _ _ Mrs"; ~Sa1-ith;11.Sé:;fié~fi:a
D/o Late Victor Sequeira,
' a,_Aged 'about V3'4"years,
V 1 ;I'a.né:'t Sequeira
D/'ojL2>f.'e Victor Sequeira,
about 26 years,
'A All aréfresidents of
rS_eq.uei1'a Compound,
' I Mzinnagudda,
_;:Manga]ore -« 575 003. ...APPELLAN'¥'S
é
ix)
(By Shri. G. Balakrishna Shastry, Advocate)
AND:
1.
1(a)
'1 (b)
ManAg~aIo'i'ep--'v572},.00.3:
Mr. M. Suresh Kamath
S/o M. Rathnakar Kamath,
Since deceased
By his Legal Representatives
Mrs. Sumana Kamath , .
W/o Late Saresh Kamathi.K=-
Aged about 49 years,
Mr. Shailendra _ A
S/o Late Suresh Ka'nia_th,'
Aged about_25 years, _ '
V AAAA H
W/o iLate"'~[ishvtranatI.i 2 _K}':i--f1'}_i1th',::
Aged 6v2_"yéé1t§,._ --. " " " E
;,Residirig',at Door _Noi,6- i 6{6Li 5,
Behind 'Sai3iaj..,Blaaya,nV,' '-
Mar_ina,gudd._a, "
A. S'a'n'ath~" Kumar Shetty, Advocate for
. CayeatVoi*l1§-epspondent)
This.jRe:gu1ar Second Appeal is filed under Section 100
offjode' of Civil Procedure, 1908, against the judgment and
decree 'dated 12.11.2008 passed in R.A.No.73/2004 on the
ffie ofithe III Additional District Judge, D.K. Mangalore,
aiio"win.g the appeal and setting aside the judgment and decree
in "'Vr1ated 0312,1995 passed in o.s.No.io44/1993 on the file of
A H the V Additionai Civii Judge (Jr.Dn), Mangaiore.
E
. . .RESPONDENTS
This Regular Second Appeal having been heard and
reserved on 03.12.2010 and coming on for pronouncement of
Judgment this day, the Court delivered the following: ~
JUDGMENT
Heard the learned counsel for the parties. The . are referred to by their rank before thetrialp colurtvifo1'-iIt'hei'sa_E:§e of convenience.
2. The appellants are the deceased defendant, of the proceedings. It was thewcasiey who are the respondents . iiciesicribed under item no.3 was rnoolageni property of plaintiff who'had.ViaCqiiL1ired the same under a registered sa-leldeied dated i4¥1'0:l 978. The property described at item said Schedule was wolla moolageni. property acq.Lrire_d'hyi'.V'the husband of plaintiff no.2, under a registered ..sal_e deed dated 17.2.1964. The husband of the said plaintiff 0"-hiad'idied an year prior to the suit. The said items of the suit 0 "schedule properties consisted of residential buildings under 5 the occupation of the plaintiffs and their respective family members.
It is stated that the main road leading to their liou.ses:,"*._ namely, Sultan Battery road was about 200 K respectively, from their houses. The"io'nly_ '.:iccess"'to_ their houses from the main road is through apassage provided over% i property bearing no.686 C, adja'c.etrit'ito the suit properties, under their sa.lefdee__ds theirivendors. it is the case of the plaintiffs that'-the exclusively provided to _their.:hoiu.ses--._<aojd absolutely reserved for their use. " lt "an easement. The passage runs east to westgfrom thei';nain'iiiroad, which runs north. to south. Tlielipassage is """ 'feet in width and 200 feet in length. Tl_1.e1%g giateviiat the entrance and the passage is separated from the'defendarit's property by a compound wall on the H .south of the suit property.
The defendant's property towards the south of the suit it "properties is directly accessed from the main road. The X defendant is said to be rearing pigs on his property. The plaintiffs claimed that though there was access to."'t--he defendant's property from the south eastern side efthe' "
the defendant was making attempts to open_.the::<:otnpound9 wall on the southern side of the plaintiffs' .ptop'er1tieis"-in'oi'der; at to access the passage meant"i_for_the exclusive_ uh-sje~--.of the plaintiffs. The plaintiffs had there--fiore_f'iledi the "su.i.tpse,e-iking to injunct the defendant f1'ot"h right of user of the said passage.'a._ The sii1t.wg's't re_siste§i. «.t?*°~ 'defendant who contended that orie Subba original owner of land bearing Sy.no. lliguwhich about 1.45 cents. Subba Rao hadiigranted. the 1and"'o'ni"Moolageni" basis to Jackie Sequeira I 'aridAnthoiiyfSiequeira, who were brothers, under a deed dated (Moolageni: The tenure of an original Atoccupaiit with hereditary successien of land at a fixed rate, 'iii-indefeasible as long as the stipulated rent is paid: a perpetual iilease). It transpires that the said brothers had orally /9' In appeal before the lower appellate court, it was held that it could not be denied that the passage in question was reserved only for the use of the plaintiffs, it was immaterigal whether the plaintiff' s could lay claim to ownersh.i:p_'4-of"tlhsfl, same. There was no other third party who using the passage when it was granted topthe "plaintiffs.- fact that there was a gate provided ent;:anc;e.:l_eadiii;1g.li from the main road, only show_e_d-.that_p lIh€..lp~lali1tlff'fS were indeed given exclusive over_ the sa'n{1'e..:'A right of way, it was held could_n:ot..be §:olnfe1€fed.:ltaid.er a 1ette1' gaid to have been issued. Moolagenidajr in favour of the defendant. Further, litalwas also" that the defendant who had dir.et;t access t.o'=hisv_property from the main 1."()3d, could not ' also.ci--at.n1 right of way through the disputed passage, on thel"fbasis"o'jf the above letter, which was inadtnissible in evidence'; I_t is that judgment which is sought to be ch_allenged in this second appeal.
5
3. The learned counsel for the appellant would contend that there was no material evidence or documentto show that the plaintiffs had acquired an exciusive__1ji'g'i'1t[ot£er the pathway in qztestion. As admitted; ,b..V_the plai'1':'ti.ff_--'--1._) hi it was supposedly on an oral assttranee his "vezido'r at .:the"*1I.i time of transfer of the suit pro--pVerty, th.at.__suc.h: right-Vw'as being asserted. There wasno C1~Cl'i'}'7'I1'T:§:)"'r:1VV'l"i--.§Q2j,"1'1t ofliownevrship of the land comprising the pathiifayi It is 'tharttpuaiiit.temgporp EQP-i, a Copy of the sale de'ed"t'ofV.p:the cionveyihg Moolageni rights in respectzof one _t"ii«e;is-1ii't..-property and Ex. P~2 a Wolla Moo!-ageni jsub.-.leas"e) deed of the year 1964 in respect of " the'i"othEer' itern of theiisnit property only confer an easement of rigltt fo the pathway to reach the main road from the stiit properties. it is contended that the said exhibits were it ., 'iiei-ther originals or certified copies of the originals and hence were not even admissible in evidence.
Eb l0 It is contended that the letter issued by the Moolagenidar granting permission to the defendant to use "the pathway by making an opening in his compound wall.,'{?«S:'_'p€.f "
Ex.D~l , was a licence granted in his favour of an easement and therefore the '»reas-oniiigd'rroffithel'lower,.* appellate court that the said docurnen.t re'quired rie:gist1'vation_.3as d it had the effect of corweyinpg.----awri--gh't_,LAof..way:.._by_.iivvay of easement was erroneous; ;_lt that it is not a transfer of irnrrioyahle did not require registratioritx A it i l 33 of the Indian Easenierits only when a disturbance is actjerally. caused .__to the plaintiffs dominant heritage that the » :Vplairitiff«.w*ould_ have a cause of action. In the instant case "mere nojditisvturbance caused to the plaintiffs' easementary righrsatg_ all.
The learned counsel. for the appellant places reliance on the following decisions in support of his arguments :
Z ll a. Assrmiateri Hotels of India Ltd. Vs. RN. Kapoor, AIR 1959 SC 1262 b. Hamir Ram vs. Varsing Raimal, AIR 1998 Gujarat 165
4. On the other hand the learned counsel forithep respondents seeks to justify the impugned places reliance on the following authority':
S.K.R.M.Subramanyam Chetriar vs. .1949 Madras 522
5. In this appeal, the iis'ttI..lastantiali" "law framed by this court stage ofithei appeal was, which the defendant sought to claim aright way,Vr'equired compulsory registration V' . under the Registratio'a"Act, 1908.
ii ' There serious dispute that the pathway in question is 'provi__:'1edVt'o the plaintiffs' by their vendor, to access the 3 suit property alone. It is the defendant who seeks to assert 'thatihe has also been permitted, immediately prior to the suit, wto use the pathway after accessing the same by breaking his % l2 compound wail, bordering the pathway. It is hence pertinent to address the above question and to ascertain whetherfthe reasoning of the court below is in accordance with law; I , "
The case law cited by the coun'siel"i'o.r4_ti1e not throw much light on the issue invoiv_ed--._ In the_"_;fii'st ofilthe-~_V I' decisions cited, Associated H(2téZs§(;f Irttiid the question involved tliei-einlflvvas the 'SectionVl2i (b) of the Delhi and And whether the respondelntpppi:there~in.: ask for the Cl6t(31'I1')_1'VT.lE1l.,lQ"fAV1'.,(§_::.f of the Act , in respecfggf' Incidentally, the apex court has expounded ionltiie distinction between a lease as (';lefiIit3('i--."itkI1(l€;1' thei'I"ransfer of Property Act and license as Indian Easements Act. The endeavour of the"---lea3<jned «counsel for the appellant in the present case on 'hand isto place reliance on the observations with regard to 'nature of a license in the above judgment to contend that a 5 13 right of way is to be construed as a license. This proposition is not acceptable as shall be presently pointed out. In the next judgment relied upon, in the case of "
Ram, supra, rendered by the Gnjurat High court, qttestion Vi "
was, whether a document confet'ri.ng'-a rigtit :'oftw_ayi' "1'e<i;1'tiif1*e_d'*~::; at to be cotnpulsorily registered. _coutt" has conci1n,§Eed,,th3at i the creation of an easement niayr-bc,...b3r anoral agreement and that it does not require regiistrationif' TI" may not be the correct View of the It is _to{_ for purposes of the Indian Registration ..1908,'«Snb¢section (6) of Section 2 of that Act defines "limni1ovahle.. " thus :
i"immova'olei: ipro1::serty" includes land, buildings, allowances, rights to ways, lights, ferries, it ' any other benefit to arise out of land, and thingsaitached to the earth or permanently fastened ii a to, anything viihich is attached to the earth, but not standing" tirnher, growing crops nor grass?' (Emphasis Supplied).
Further, under the Indian Easements Act, 1882, a right of way is considered as an easement. An. easement cannot § l4 also he claimed as a licence having regard to the very definition of a "licence" under the said Act, which reads"~as follows :
":32. "Licence" defined. -- Where _oneAl_"p.ers--o:n , grants to another, or to a definite lnlunfiher of ,other_"7 persons, a right to do, or continue todo, in _or'u.pon' the immovable property grantor,.usVo.rhethi11g which would, inthe ahse!ice_ of sucliwright,7 be unlawful, and such5righ.t tgoeslamount to an easement or an intei--est=in the p'rope'rty; the right is called_Va_.:liceinc_eff':{Ernphasi_s s:'u'15pt.ie:7i) .,l'~Ie:«;t.l§/','Vl_ihthefipathwafii 'in--...q,uelstion measures over a thousand lsquarellfe'etIand'c~i_s""certainly Valued over? 100 (this was not a of "g-iislput'e~--'liV)etween the parties) would require registration, under Section 'l7(l)(b) of the A . Rjegi'strati.o1i if the easement of right of way is sought to be'--confer under a written document, such as Ex D--l.. in this regard, the decision cited by the learned counsel the respondent (AIR 1943 Madras 522) may be usefully referred to. The appellant therein was the defendant in a suit Z> 15 for injunction restraining the appellant from interfering with the right of way over a lane. The right of way was said to have been conveyed to the respondent for '5 .175, unregistered document. The lower courts had heid ~ document did not require registration, following the*d,ecisio_13s in (1909) 31 All 612 and AIR 192"9tpM?aara.s"79; decisions subscribed to the view~s.th-at there was _a difference between a document which creiatede-anVie'a..$ement}1"'lVhich did not require registrationgas ._thcre .'1'iogtransfer of any tangible prop?e,rty;iii's»ra_st ,¢lont¢aip1aiea the Transfer of Property 2~i\'cit;fand itiidocitnient transferred an existing easemenpwhiich required"suchregistration, as it was an act of the gdoinyinant 'owner and inseperable from the transfer from . jtheu transfer' the dominant heritage. ' the decision in AIR 1917 Cal 681, it Vllheldflthat having regard to Section 2 (6) and 17 of the Registration Act, a document which creates a right of way if __i:reates a right to or interest in immovable property . As the document in question was in consideration of a sum é 16 exceeding Rs.l00, it should have been registered and under the provisions of Section 49 , Registration Act, it cou1d,g*"not have been received in evidence. It was noticed~«~~th'at,'__theyd"
provisions of the Registration Act were not c()nsid.ered,'in the decisions relied on by the tower courts, possiblyibeic-attset-t.no»a;a at value was attached to the easenients created, inftihei.'fa.c§s..3of A those cases. ._ , The argument can:v'as_sed_«'iby_the,leai=ned counsel for the appellant that it is onlywmif t.he.vii__right-'""to"enjoyment of the easement is theiiex_ereisieioi'a right of way and the use"-of the sajirtefjbyi the'cl_efendant appellant, that a cause of action would arise and'~that>in the instant case there is no such likelihood ~r5is on1y""t'aken note of to be rejected. It is the jofthe plaintiffs that any such act on the part of the«4defem.iaint would directly and substantially affect them. In . event, the defendant not being in a position to establish ithatiiany such right of way is available to him, is not in a it position to draw sustenance from the said argument. é 17 In the result, the substantial question of law is answered to hold that Exhibit.Dl was corrpulsorily registrable, to be admitted in evidence and to be relied A4 Aecardingly, the appeai is dismissed.
nv .....