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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.

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.

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;