JUDGMENT

S.B. SINHA, J -

1. Leave granted.

2. Application of Section 17(2)(vi) of the Registration Act, 1908 (for short "the Act") in the facts and circumstances of this case is in question in this appeal which arises out of a judgment and order dated 31.03.2001 passed by the High Court of Andhra Pradesh at Hyderabad in L.P.A. Nos. 163 and 229 of 2000.

3. Appellants are neighbours. The dispute between the parties relate to a passage. Plaintiffs - Appellants claimed to have purchased 590 sq. yards of premises No. 5-4-413 to 415 at Nampally, Hyderabad from one P.N. Vijaya Lakshmi. Allegedly, another 259 sq. yards of land was also purchased by them from the said vendor. When they had been proceeding with the construction of the building, allegedly, respondents interfered.

A suit bearing No. OS No. 76 of 1975 was filed claiming for a decree for perpetual injunction. The said suit ended in a compromise, the terms whereof are as under:

"1. That the portion marked Green in the plan shall be exclusively enjoyed by the Defendant without any interference from the plaintiffs. The plaintiffs hereby admit that this portion of land marked Green in the plan attached with the Memo of compromise belongs to the Defendant No. 1 and his brother Sri Noman Ali son of Sri Abdul Khader, Defendant No. 2.

2. That the portion marked Red will be enjoyed by the plaintiffs exclusively without any interference with the Defendants or his agents.

3. That all other claims against Defendant in the suit are hereby withdrawn by the plaintiffs."

4. A map was annexed to the consent terms. All the properties shown in the red were accepted to be the properties of the plaintiffs and the defendants had allegedly agreed not to interfere with their possession. It was stated that a passage running from north to south connecting Mukarramjahi Road was shown to be the exclusive property of the plaintiffs. It was furthermore alleged that the respondents father was a tenant in the premises bearing No. 5-4-412. The said property was purchased by the respondent No. 1 in a public auction held on 8.11.1957. The extent of the land which was the subject matter is in dispute.

5. Respondents admittedly had constructed shops on Moajamjahi road with a huge opening on the main road. The defendants despite the said consent terms made attempt to fix an old door on the eastern side of their wall making an opening on the purported private passage belonging to the appellants.

Respondents, however, contended that the appellants have no exclusive right over the scheduled property, i.e., passage measuring 80 yards situated at Nampally, Hyderabad. According to them, the passage in question was a common passage.

6. Appellants filed a suit which was marked as O.S. No. 341 of 1993 for a declaration that the suit passage, as shown in the red marked A, B, C and D in the plaint is their private property.

7. Respondents filed a suit for perpetual injunction which was marked as O.S. No. 1132 of 1993, and renumbered as O.S. No. 769 of 1994, seeking injunction against the appellants from interfering with their usage of the passage. It was alleged that the appellants tampered with the plan by adding the word "plaintiffs" above the word "passage" in the plan.

8. The said suits were consolidated; the claims of the parties having common issues. The issued framed were:

"In O.S. No. 341/93

(1) Whether the plaintiffs are entitled for the relief of declaration as prayed for?

(2) Whether the plaintiffs are entitled for perpetual injunction as prayed for?

(3) Whether the plaintiffs are entitled for mandatory injunction as prayed for?

(4) To what relief?

In O.S. No. 769/1994

(1) Whether the plaintiffs are entitled for the relief of perpetual injunction as prayed for?

(2) To what relief?"

The learned Senior Civil Judge, City Civil Court, Hyderabad by a common judgment decreed O.S. No. 341 of 1993 and dismissed the suit filed by the respondents viz. O.S. No.769 of 1994.

9. Appeals were preferred there against by the res