Kerala High Court
Varghese Paul And Ors. vs Narayanan Nair And Ors. on 25 May, 1999
Equivalent citations: AIR 1999 KERALA 417, (1999) 2 KER LJ 99, (1999) 3 CIVILCOURTC 113, (1999) 2 KER LT 571, (2000) 1 LANDLR 244, (1999) 4 RECCIVR 30, (2000) 2 CIVLJ 314, (1999) 3 CURCC 559
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT K.A. Abdul Gafoor, J.
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 plaintiff and defendants which is not disputed by the defendants. Exhibit A1 agreement is executed by both the parties. It is concerning a passage of 8 feet width leading to the buildings 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 Section 17 (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 Section 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 Section 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. A1 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. Exhibit 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 P.W. 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 understanding that 8 feet width passage will have 50 feet length as revealed in the schedule to the plaint. The agreement thus resolved the 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 the parties had mutually given and taken rights in the said strip of land by means of the said document. As already mentioned above, execution of the agreement is not in dispute. But, the 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. A1. 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 Section 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 Section 2 (6) of the Registration Act and any document creating right over in or to an immovable property shall have registration in terms of Section 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. Exhibit 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 Section 49, the trial Court did not accept Ext. At 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. Section 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 instruments 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", 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 Section 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 Section 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 Section 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 raise 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 registrable in terms of Section 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.
4. As already mentioned above, the defendants who put up the plea that the document was liable to be registered and therefore could not have been accepted in evidence were, also the executants of the document. Their liability to execute the document is not disputed. In other words, they are also liable to register the document. They also gave and took certain rights from and in favour of the other parties. The conduct of the defendants that they did not register it in spite of the right taking from Ext. A1 shows that they were also under the belief and bona fide impression that it did not require registration in terms of Section 17 (1)(b) as either the value of the right so created or extinguished was less than one hundred rupees or it was incapable of valuation. The value of the land does not have any bearing with reference to the value of the right. If the defendants had attributed more value to such right, Ext. A1 would have in law registered. But they did not register it. In this background, it is profitable to refer to the decision of the Supreme Court in Mithilesh Kumar v. Manoharlal, (1997) 9 SCC 54. There also, the Supreme Court considered an agreement which read as follows:
"I have purchased a piece of land only and not the trees and the wall. The said trees and wall belong to Shri Mithlesh Kumar. The following are the terms and conditions in respect of the said trees and the wall:
(1) That Lala Mithlesh Kumar will uproot the said trees and demolish the wall within 6 months hereof.
(2) Whatever construction is raised by me in the said piece of land, I will not open any door or window or ventilator or rainwater pipe or other pipe for discharge of day-to-day water flow towards the South, North and East. I will not construct any platform or balcony or stairs or comers towards 16 ft. wide passage which Shri Mithlesh Kumar has left in his land in front of my piece of land.
(3) That I will raise my boundary wall in the north after leaving a setback of 3 ft. measured from the platform.
(4) That if I violate any terms or condition, as aforesaid, Lala Mithlesh Kumar will have a right to enforce the same through process of law at my costs and expenses".
Though this agreement was entered into by a person in whose favour the land had been transferred restricting enjoyment of the said land, that also was with reference to extinguishing of certain right and interest in the land and creating certain rights in favour of the other. Considering the said agreement, the Supreme Court held that, "The question of valuation in that case did not arise; even though we have held that it is conveyance or restrictive covenant or clog on the right to enjoy the property and may limit the enjoyment of the property; but being not capable of valuation of hundred rupees or more, the prohibition of Section 17 (1) (b) is inapplicable to the facts in this case".
Exhibit A1 agreement is also a clog on the rights of the parties to use the 8 feet width pathway absolutely in terms of their title thereto and to construct a staircase for mutual benefit and therefore the right created or extinguished in terms of Ext. A1 is a restrictive covenant and therefore incapable of valuation. When such right is incapable of valuation, necessarily, it cannot be said that it is of the value of hundred rupees and upwards to attract Section 17. Thus, I am of the view that Ext. A1 document was not required to be registered. Consequently Ext. A1 is entitled to be received in evidence. The question of law thus raised by the appellant 1st plaintiff is answered in his favour. When the document is thus not liable to be registered, necessarily, it has to be accepted in evidence. It is not a disputed document. Therefore, the parties are bound by this document. The defendants cannot evade and shirk away their liability arising out of that agreement. In terms of the agreement the defendants have accepted that there is 8 feet width common pathway to be preserved in between the buildings. Even admittedly by the respondents-defendants the commission report revealed and proved that as at present the width of the pathway between the walls and plinths of the buildings of the respective parties is only 6 feet and 4 inches which is far less than the width contemplated in Ext. A1 agreement. The width had been still reduced if the measurement is taken from plinth to plinth as 5 feet and 10 inches. These evidence proved that the construction undertaken by the defendants was in total violation of the agreement admittedly entered into by them as per Ext. A1. They have admittedly not constructed the stair case in the manner provided for in Ext. A1 agreement. The defendants cannot revert back from what they have reciprocally promised in Ext. A1. They entered into Ext. A1 agreement to honour it and not to violate it. Therefore, they are totally bound by Ext. A1. The plaintiff also derived certain rights out of Ext. A1. The 1st plaintiff is entitled to gel a declaration that the defendants are liable to construct the building in the property only after leaving 8 feet width common passage measuring from the building of the 1st plaintiff where the defendants were liable to construct the staircase in terms of Ext. A1. When thus Ext. Al is admitted in evidence and is found as binding on the defendants, necessarily, the 1st plaintiff-appellant is also entitled to prohibitory injunction as prayed for in the suit.
5. The finding in paragraph 14 of the trial Court judgment in answering issue No. 3 as to whether the construction was completed before the suit and was the suit infructuous was that, "so possibility of putting up any construction after the visit of the commissioner and before the service of order of injunction cannot be ruled out in the circumstances". Thus major part of construction was completed pendente lite. Therefore, applying the doctrine of pendente lite the respondents cannot raise a plea to sustain the construction already made.
6. Even otherwise, even without applying the doctrine of pendente lite, when Ext. A1 is an admitted document and when, as is proved on the strength of the commission report, there is violation of the terms of the binding, agreement, necessarily as the 1st plaintiff had prayed for mandatory injunction for demolition made in violation of Ext. A1 agreement, he is entitled to that relief as well.
7. While granting these reliefs, I have not forgotten' to consider the contention of the defendants-respondents raised before me that even if Ext. A1 is admitted in evidence, the proper remedy available to the 1st plaintiff was not a suit for declaration and injunction as instituted by him, but one for specific performance or damages as the case may be when there is violation of Ext.
A1 agreement. As already mentioned above, Ext.
A1 is an admitted document whereby the parties given and taken rights in respect of properties covered by it. When there is rights in favour of the plaintiffs and when that right is encroached by the other party to the binding agreement, necessarily the party whose rights are so encroached shall sue for declaration as well as injunction both mandatory and prohibitory. Therefore, the contention with regard to the manner of suing by the plaintiff does not deserve consideration.
8. In the Written Statement it had been contended by the defendants that Ext. A1 was not supported by consideration. The appellate Court seems to have discussed these aspects in its judgment though it did not come to the conclusion on that point. Consideration is an integral part of the contract to make it enforceable. Section 2(e) of the Contract Act provides that, "every promise and every set of promises, forming the consideration for each other, is an agreement.", and Clause (f) further provides that "promises which form the consideration or part of the consideration for each other, are called reciprocal promises". As already mentioned above, Ext. A1 contains recital with regard to the rights and liabilities of each of the parties and entitlement of the defendants to construct a staircase in the land admittedly belonging to the plaintiffs and the plaintiffs' right to use the portion of the passage remaining on the side of the staircase contemplated in Ext. A1. Therefore, Ext. A1 contains reciprocal promises or promises forming consideration for each other. In such circumstances, no separate consideration need be shown to make Ext. A1, an enforceable contract. There was no contention with regard to estoppel or encouragement or acquiescence on the part of the 1st plaintiff. When there is an agreement as is seen from Ext. A1 creating or limiting a right as the case may be between the parties, there arise no question of any encouragement or acquiescence or estoppel by the plaintiffs when the defendants were going on with the construction.
9. In the aforesaid circumstances, the suit is decreed, reversing the judgments of the Court below.
(i) declaring that the defendants did have the right to construct the building only after providing 8 feet width common passage in between the then existing building of the plaintiffs and the building that had been constructed by the defendants,
(ii) prohibiting the defendants from making any construction except the staircase as mentioned in Ext. A1, encroaching the said 8 feet width common pathway;
(iii) directing the defendants to provide 8 feet width gap between the buildings of the parties in terms of Ext. A1 agreement with liberty to have construction of a staircase as agreed to in Ext. A1, and
(iv) granting the costs throughout to the plaintiffs to be recovered from the defendants.