Telangana High Court
G Vemanachary, Mahabubnagar Dist vs Putta Raghu, Mahabubnagar Dist on 10 March, 2022
HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CIVIL REVISION PETITION No.2218 OF 2015
ORDER:
This Civil Revision Petition is filed against the orders dated 02.12.2014 in I.A.No.240 of 2014 in O.S.No.173 of 2008 on the file of learned Principal Junior Civil Judge, Gadwal.
2. This application in I.A.No.240 of 2014 was filed by the plaintiff under section 151 of the Code of Civil Procedure, 1908 (for short, 'the C.P.C.') to mark the original agreement on his behalf. This application was allowed by order dated 02.12.2014. Assailing the same, the defendant filed this Civil Revision Petition.
3. Heard the learned counsel for the petitioner. There is no representation on behalf of respondent. Perused the record.
4. For the sake of convenience, the parties herein are referred to as plaintiff and defendant as arrayed in the original suit.
5. The plaintiff filed the original suit for mandatory injunction. Defendant filed the written statement. Issues were settled. In the course of trial, the plaintiff has filed this AVR, J C.R.P.No.2218 of 2015 2 application in I.A.No.240 of 2014 to receive the agreement dated 30.4.2001, which is crucial document to establish his right of easement stating that except easementary right he is not claiming any other right in respect of immovable property. The said agreement dated 30.4.2001 is executed with required stamp duty. It is just and necessary to permit him to exhibit the said document on his behalf.
6. The defendant has filed a detailed counter before the trial Court resisting this application stating that the alleged agreement confers rights in favour of the plaintiff in respect of immovable property and it requires compulsory registration under Sections 17 and 49 of the Indian Stamp Act and the Registration Act and unless and until it is sufficiently stamped and registered, it cannot be received in evidence. The Court below, after examination of the rival contentions and careful analysis of the facts of the case, allowed the said application permitting the plaintiff to exhibit the said document on his behalf. Assailing the said orders, the defendant has filed this civil revision petition.
7. Admittedly, plaintiff has filed the original suit for mandatory injunction. Evidence of the plaintiff is in progress.
AVR, J C.R.P.No.2218 of 2015 3 The contention of the plaintiff is that, he is only claiming easementary right and no other rights are claimed through the said document dated 30.4.2001, and as per the said document, he is permitted to open windows for ventilation for passing air and light into his house and that he has no right to put doors towards southern side of the open place. He has no right of flow of rain and drain water from the said place. Whereas, the learned counsel for the defendant strenuously contends that this document creates rights in favour of the plaintiff in respect of immovable property on southern side of his house and it is a document required to be registered under Section 17 of Stamp Act.
8. Photocopy copy of the document is filed at page No.15 of the paper book. It is scribed on Rs.100/- non-judicial stamp paper. A plain reading of the said agreement shows that on 30.4.2001, the plaintiff has executed the document in favour of Ibrahim Saab stating that in between their houses, there is a nine feet lane and that the said Ibrahim Saab is entitled to make construction, but the plaintiff is entitled only to open two windows into the said lane. He is not entitled to use it for flow of rain and drain water. This is the document on which the plaintiff was relying before the trial Court for grant of mandatory AVR, J C.R.P.No.2218 of 2015 4 injunction. Nowhere in the entire contents of the document it is found that a right is created in favour of the plaintiff in respect of any immovable property either belonging to the defendant or belonging to the Gram Panchayath/Municipality.
9. Be it stated that it is a unilateral undertaking/agreement wherein the plaintiff has agreed not to put any drain spouts or make any provision for drain water or rain water, whereas the said Ibrahim Saab has got a right of ingress and egress through this way, but the plaintiff has no such right. The present suit is filed by the plaintiff against the defendant and not against the said Ibrahim Saab. But, as per the claim of the defendant in their written statement, it is mentioned that the defendant is the exclusive owner of the said lane and he alone is entitled to use the said lane. Whether defendant is owner of the said lane with exclusive right to use etc., are the matters to be decided after full length of trial in the original suit.
10. The short point for consideration is, whether the document dated 30.4.2001 requires stamp duty/penalty or not?
11. In similar circumstances, this Court in Dwara Satyanarayana Vs. Malladi Bhanumathi and Others in C.R.P.No.261 of 2012 held that creation of right of easement by AVR, J C.R.P.No.2218 of 2015 5 grant is not such transfer of ownership as is contemplated under Section 54 of the Transfer of Property Act. No title or ownership over the said passage is created under the document in favour of plaintiff, who is a beneficiary of such document and he was only permitted to reach his land through the said passage and such document does not require registration.
12. In the present case also, document dated 30.4.2001 does not create any right in favour of the plaintiff in respect of the said lane. In fact, as per the said document, it is the plaintiff, who himself executed an undertaking stating that except opening two windows towards southern side, he will not use that lane for any other purpose including passage of rain or drain water.
13. Learned counsel for the defendant strenuously contends that, it is the document creating right in favour of the plaintiff over the lane which is exclusive property of the defendant and that the said document requires registration and relied upon the principles laid by this Court in Netrambaka Krishnaiah Vs. Nellore Audinarayana1.
1 2006 (1) ALT 76 AVR, J C.R.P.No.2218 of 2015 6
14. I have given my thoughtful consideration to the submissions made by the learned counsel and the principles laid in the decision relied on by the learned counsel for the defendant. The facts in the present case and the facts in the reported decision cited above are distinguishable. In the case on hand, the said undertaking is only to permit the plaintiff to open two windows for free flow of light and air with a condition that he will not use the said land towards southern side of his house either as a passage or for flow of drain and rain water. Therefore, by no stretch of imagination, it creates any right in favour of the petitioner/plaintiff in respect of immovable properties except to open two windows towards that lane. Whether the defendant is the owner of the said lane or not is the question to be decided after full length of trial on merits. But, for marking the said document on behalf of plaintiff as one of the exhibits, there cannot be any objection on behalf of the defendant on the ground that it requires registration and stamp duty.
15. Therefore, in the facts and circumstances of the case, considering the principles laid by this court in Dwara Satyanarayana, I find no reason to interfere with the order impugned and it is sustained.
AVR, J C.R.P.No.2218 of 2015 7
16. In the result, the Civil Revision Petition is dismissed. However, the parties shall bear their respective costs. Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.
__________________________________ A. VENKATESHWARA REDDY, J Date:10.03.2022 TBV/KH AVR, J C.R.P.No.2218 of 2015 8 HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY CIVIL REVISION PETITION No.2218 OF 2015 Date:10.03.2022 TBV/KH