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Gujarat High Court
Judgename :D.C.Srivastava
HAMIR RAM - Appellant
Versus
VARISNG RAIMAL - Respondent
C.A. 241 of 1980
Decided On : 02/06/1998
The question is whether the document creates, declares, assigns or extinguishes the right of easement or not. From the recital in the Agreement itself it is clear that the easement was created orally three days before this document was brought in existence, Consequently this document by itself does not create or declare any easement. As such it hardly requires registration.
[Para 19]
(b) Indian Registration Act, 1908 - Sec. 17 - Transfer of Property Act - Secs. 6(c) & 54 - Transfer of easement without reference to transfer of immovable property - Whether requires registration under the Act - Held, mere creation of easement not requires registration.
Thus from this Authority it is clear that transfer of easement without reference to transfer of immovable property is, meaningless and mere creation of easement does not requires compulsory registration of such a document.
It any view of the matter from the disputed document it cannot be said that it is a case of transfer of easement.
[Para 23]
(c) Indian Registration Act, 1908 - Sale deed - Common passage - Agreement to right to passage - No intention to transfer ownership - Consideration paid or some other land given - Whether agreement is sale deed and requires registration - Held, can not hold a sale deed of immovable property requires no registration.
Thus, even if Rs. 351/- were paid as consideration or that some portion of the plot of the plaintiff was given to the defendant No. 3 it does not render the document a Sale Deed. Further, the recital in the said Deed that all the parties to the Agreement were to use the right of passage without obstruction from any of them will indicate that the parties never intended to transfer ownership in respect of the land which was set apart for the purpose of common passage. Hence, it cannot be held to be a sale deed of immovable property having value more than one hundred rupees. For this reason also the Agreement does not require registration.
[Para 24]
(d) Civil Procedure Code, 1908 - Sec. 100 - Finding of fact - Concurrent finding of Court below - No prescriptive easement or easement of necessity or by immemorial user based on evidence - Whether Court can interfere in second appeal - Held, concurrent finding of fact requires no interference in appeal.
The finding of the lower Appellate Court on other aspect of the case that the plaintiffs have failed to establish prescriptive easement or easement of necessity or easement by immemorial user is a finding of fact based on proper appreciation of evidence on record which requires no interference in this Second Appeal. The two Courts below on the basis of eivdence on record returned concurrent finding of fact on the aforesaid points. Likewise regarding vandhavav way already there is concurrent finding of fact of the two Courts below which requires no interference in this Appeal.
[Para 26]
(e) [Indian] Evidence Act, 1872 - Sec. 115 - Promissory estoppel - Private parties whether estoppel theory apply - Held, theory of estoppel does not applicable to private parties.
The last question formulated is principle of promissory estoppel. This principle is applicable to administrative law and not between the private parties.
[Para 7]
( 1 ) THIS is plaintiffs Second Appeal arising out of the following facts : the plaintiffs-appellants filed a suit for declaration that they had got a right of way to their plots Survey Nos. 511 and 512 through southern portion of Survey Nos. 502 and 510, in the alternative through southern portion of Survey Nos. 502 and 506, further in the alternative through Survey Nos. 517/1 and 515 of respondent Nos. 4 and 5. The right of passage was claimed on several grounds. The first was by way of immemorial user, by acquisition as prescription, as grant and as easement of necessity. They also sought injunction restraining the owners of the above plot numbers from preventing them from passing through the aforesaid passage and for taking carts, bullocks and ploughs, etc. The claim of the plaintiffs was that plot Nos. 511 and 512 belonging to them are in land-locked condition. Plot Nos. 502 and 510 are to the west of the plaintiffs plots owned by respondent Nos. 1 and 2, whereas plot Nos. 503, 508 and 509 are in the ownership of respondent No. 3, whereas plot nos. 515 and 517/1 are owned by respondent Nos. 4 and 5. Some dispute arose in respect of this right of passage when Suit No. 95 of 1971 was filed, but it was dismissed. The appeal was preferred where the suit was withdrawn with liberty to file a fresh suit. Before that the appellant No. 2 initiated proceeding in the Court of Mamlatdar in 1966 for right of way to the north of Survey Nos. 502 and 509 or south of Survey Nos. 503 and 508. The suits were dismissed by Mamlatdar observing that the party should go to Civil Court. Thereafter, a compromise was entered into between the parties as a result of which respondents 1 to 3 or their predecessors agreed to keep open a space to the south of Survey Nos. 502 and 510 for the purposes of their passage. Subsequent to this oral compromise an agreement in writing was entered into wherein the right of way from southern portion of Survey Nos. 502 and 510 was recognised. In the alternative it was pleaded that the plaintiffs have right of passage from northern part of Survey Nos. 502 and 509. The right of passage through plot Nos. 517/1 and 515 belonging to respondent Nos. 4 and 5 was referred to as Vandhavav way.
( 2 ) THE suit was contested by the defendants on various grounds, viz. , the suit was barred by limitation and that the plaintiffs have not acquired any easement by immemorial user or prescription or by way of necessity. The written agreement is said to be inadmissible in evidence because through it immovable property for more than Rs. 100. 00 was transferred. Hence, it is compulsorily required to be registered under S. 17 (1) of the Registration Act.
( 3 ) ). Respondent Nos. 4 and 5, however, in their written statement admitted that the appellants have got northern as well as southern way, but they are not the ways passing through their fields. They denied that the appellants have got a right of way through Survey Nos. 517/1 and 515 belonging to them.
( 4 ) THE trial Court found that the suit was barred by limitation. It further found that the plaintiffs failed in establishing acquisition of prescriptive right of way or right of way by immemorial user or grant or as the easement of necessity. The trial court further found that the plaintiffs failed to establish their alleged claim of right of way through Vandhavav way. The suit was ultimately dismissed.
( 5 ) AN Appeal was preferred in which the lower Appellate Court found that the suit was not barred by limitation. It, however, found that the appellants claim of easement by prescription, by necessity or by immemorial user was not established and the right of northern way called as Vandhavav way was also not established. The plaintiffs claim of passage on the strength of grant was also not accepted. Hence the appeal was dismissed.
( 6 ) ). As many as six substantial questions of law were formulated. These substantial questions are overlapping in nature. In nutshell
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