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Gujarat High Court
Judgename :R.S.Garg
LUHAR TULSIDAS NARSIBHAI - Appellant
Versus
VRAJLAL LALJI VAGHELA - Respondent
Second Appeal 251 Of 1983
Decided On : 08/14/2006
Whether right of light and air following from unregistered partition-deed can be looked into for determination of rights of parties.
Head Note :
[Indian] Easement Act, 1882 (Central Act 5 of 1882) - Section 15 read with Section 35 - Registration Act, 1908 (Central Act 16 of 1908) - Sections 17(1) and 49 - Partition - Document of partition not registered - Right of light and air easementary or permissive - Finding as to - It is contended that partition-deed between the parties was subject to certain terms and conditions and alleged right of air and light enjoyed by plaintiff for last twenty six years was created in favour of original predecessor of plaintiff as permissive right - It was terminated by the transfer of property to successor transferees - Admittedly the alleged deed of partition is unregistered and under Registration Act it is inadmissible in evidence - The submission on behalf of defendant that even if the document cannot be looked into for partition it can certainly be looked into for collateral transaction that right enjoyed was permissive right and cannot ripen into easementary right, as per document of partition - This submission runs contrary to the language employed in the proviso appended to Section 49 of the Registration Act - When the fact of partition cannot be proved by document then rights of the parties following for the partition-deed also cannot be looked into - Thus following of the rights rather permissive rights in favour of plaintiffs predecessor in title if can not be read because of bar contained under Section 49 of Registration Act, then defendant would not be entitled to any protection under Explanation-1 of Section 15 of Act of 1882.
Held :
The legal proposition is plain and simple, it provides that an unregistered document can be used as evidence of any collateral transaction not required to be effected by registered instrument. The collateral purpose could be very many, one of the purpose would be the nature of the possession. In the present matter, when the parties had affected the partition in presentee, each of them was reserving certain rights in favour of each other. If the fact of the partition cannot be looked into because the document is unregistered, then, the rights flowing from the said partition also cannot be looked into. It would be improper to say that the fact of the partition be ignored because the document is unregistered, but, the fact of the effect of the conditions settled between the parties, which were as a consequence of the partition, should be looked into. If the effect of the partition or the fact of the partition itself cannot be looked into, then, the benefits flowing from the said partition also cannot be looked into. The submission of Mr. Shah that certain permissive rights were given as a consequence of the partition can be looked into, would run contrary to the language employed in the proviso appended to Section 49 of the Registration Act. Even for the sake of repetition, if the fact of partition, creation of partition, division of the property cannot be looked into as the document was becoming effective in presentee, then, the rights of the parties flowing the said partition also cannot be looked into. [Para 8]
In the present case, the defendant relies upon alleged recitals contained in Exhibit 58, that is, the alleged partition deed. Court has already held that the said recitals cannot be read into evidence. If the said recitals cannot be read into evidence, then, the defendant would not be entitled to any relief unless by some other evidence, he proves that the plaintiff or his predecessor in title were exercising the right under some agreement. The alleged agreement is contained in a document which is, as a whole, inadmissible in evidence. Flowing of the rights, rather permissive rights, in favour of the plaintiffs predecessor in title if cannot be read because of the bar contained under Section 49 of the Registration Act, then, the defendant would not be entitled to any protection under Explanation I of Section 15 of the Easement Act. [Para 12]
Once it is held that the document of 1946 (Exhibit 58) is inadmissible in evidence, then, the very first condition of Section 15 of the Easement Act would stand proved because right from 1946, the access and use of light or air to and for any building have been peaceably enjoyed therewith by Laxman at least for a period of twenty six years. The right was uninterrupted and was within the knowledge of the servient heritage. It is settled law that when a property is sold, it passes to the purchaser with all the rights and obligations. If the plaintiff has purchased the property with all the rights and obligations, then, the right of easement would also stand transferred in his favour and he would be entitled to tack the right of easement in retrospection right from 1946 to 1976, that is, for a period of thirty years. [Para 17]
Law Laid Down :
If the plaintiff purchases the property with all the rights and obligations then the right of easement would also stand transferred in his favour.
Conclusion :
Once it is held that the document of 1946, Exhibit-58 is inadmissible in evidence any right alleged under the document can not be sustained.
Decided in Favour of :
Respondent
Appeal Dismissed
( 1 ) THE defendant being aggrieved by Judgement and Decree dated 8th February, 1982 passed by the learned Extra Assistant Judge, Rajkot at Gondal in Regular Civil Appeal No. 19 of 1978, confirming the judgement and decree passed by the learned Civil Judge at Dhoraji on 30th January, 1978 in Regular Civil Suit No. 110 of 1976, whereunder the suit of the plaintiff on his easementary right was decreed.
( 2 ) THE appeal has been admitted for hearing the parties on the following substantial questions of law: (1) Whether the document Ex. 58 is inadmissible in evidence as it is not registered as required by the provisions of Section 17 (1) of the Registration Act? If yes, can it not be used for the limited purpose of pointing out that the so called easement right was only permissible, in view of the agreement with the plaintiff s predecessor in title under the said document?2) Whether necessary ingredients of Section 35 of the Easement Act are satisfied for the purpose of grant of injunction sought by the original plaintiff? the short and undisputed facts between the parties are that certain properties belonged to one Ranchhodbhai, which were succeeded by his two sons, namely, Laxman Ranchhod and Tulsidas Ranchhod. The said two brothers agreed to partition the properties and in fact, effected the partition somewhere in the year 1946 under Exh. 58. Since after the partition, the parties were enjoying the possession of the property fell in their share as absolute owners without any interference by the other party. The property, which fell in the share of Laxman Ranchhod, came to be sold in favour of Kurgi Jina somewhere in the year 1978, who, in his turn, sold the property in favour of the present plaintiff - Vrajlal somewhere in the year 1976. As the present defendant, Tulsidas, started erecting a wall adjoining the wall of the plaintiff, the plaintiff filed the suit seeking injunction against the defendant - Tulsidas that he be restrained from raising the wall, as the plaintiff has perfected his easementary right to get light and air. 1. After the notice, the defendant appeared in the suit and submitted that Exh. 58 was subjected to certain terms, certain rights were created in favour of Laxman, the rights were to stand terminated on alienation of the property by Laxman in favour of anybody and as the said right was a permissive right, it cannot be said and argued that Laxman was enjoying easementary right or has perfected his rights by prescription by getting free air and light from 1946 to 1972. It was also submitted that conditions, as provided under Section-15, read with Section-35, of the Indian Easement Act, 1882 (hereinafter referred to as "the Easement Act" for short) have not been fully satisfied and as the case of the defendant is plain and simple that the right enjoyed by the plaintiff s predecessor in title was a permissive right, the present plaintiff would not be entitled to claim the easementary rights. 2. The learned trial Court, after recording the evidence and hearing the parties, came to the conclusion that Exh. 58, for want of registration, was inadmissible in evidence. The Court also held that as Laxman and since thereafter the predecessors were exercising their easementary right over the servient heritage belonging to Tulsidas and as the right has perfected by lapse of time, the defendant cannot raise the wall. The dissatisfied defendant preferred an appeal, who, being unsuccessful before the first Appellate Court, is before this Court.
( 3 ) MR. SHAH, learned Counsel for the appellant- defendant, submits that the document, Exh. 58, may be held to be inadmissible for all practical purposes, but, in accordance with the proviso to Section-49 of the Indian Registration Act, 1908 (hereinafter referred to as "the Registration Act" for short), the document can be read in evidence for limited and collateral purpose. He also submits that if from the document, it clearly flows that the right to be enjoyed
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