Point of Law: Whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If the document itself does not create an interest in a specific immovable property, but merely creates a right to obtain another document of title, the document would be exempted from registration under Section 17(2)(v) of the Registration Act.

JUDGMENT :

K.BABU, J.

The defendants in O.S.No.1322/1999 on the file of the I-Additional Munsiff's Court, Ernakulam are the appellants. The plaintiffs are the respondents.

2. The plaintiffs instituted the original suit for permanent prohibitory injunction and mandatory injunction in respect of the plaint 'C' schedule property against the defendants. The Trial Court partly decreed the suit. The Trial Court granted the prohibitory injunction as prayed for, but declined to grant a mandatory injunction.

3. The plaintiffs challenged the decree of the Trial Court to the extent it declined to grant the relief of mandatory injunction in A.S.No.259/2002 before the District Court, Ernakulam. The First Appellate Court allowed the appeal, granting a decree of mandatory injunction against the defendants.

4. The defendants are in appeal before this Court under Section 100 of CPC.

5. On 14.02.2006, this Court admitted the appeal on the following substantial question of law:

(a) Whether the First Appellate Court was justified in modifying the decree of the Trial Court directing the defendants by a decree of mandatory injunction to remove the unauthorised constructions made in 'C' schedule passage when the pathway claimed by the plaintiffs in relation to which injunction was granted by the Trial Court was already available to the plaintiffs and the constructions were outside the pathway.

6. After hearing both sides, this Court framed the following additional substantial question of law:

(i) Have the Courts below drawn the necessary inferences and presumptions that would apply on the facts and circumstances of this case?

7. Heard Sri.Vivek Varghese P.J., the learned counsel appearing for the appellants/defendants and Sri.R.Sanjith, the learned counsel appearing for the respondents/plaintiffs.

8. The learned counsel for the appellants/defendants contended that the plaintiffs failed to establish the identity of 'C' schedule property. The learned counsel submitted that the plaintiffs cannot rely on the contents of Ext.A3 as it is a compulsorily registrable document under Section 17 (1)(b) of the Registration Act,1908. The learned counsel submitted that the plaintiffs failed to establish any exclusive right over the plaint 'C' schedule property. It is also submitted that the inadmissibility of Ex.A3 document, based on which the plaintiffs claimed right over the plaint 'C' schedule property by way of a grant, would defeat their case.

9. Per contra, the learned counsel for the respondents/plaintiffs contended that the plaintiffs could establish the identity of plaint 'C' schedule property, and the concurrent findings of the Courts below on the identity require no interference. The learned counsel further contended that Ext.A3 is admissible in evidence in view of the exemptions contained in Section 17(2)(v) of the Registration Act.

10. The learned counsel for the plaintiffs contended that Exts.A1 to A3 under which the plaintiffs acquired title over the plaint 'A' schedule property, contain specific recital regarding the grant in respect of plaint 'C' schedule way by the sellers who are the defendants. The pleadings of the parties corroborated by Exts.A1 and A2 title deeds and Ext.A3 agreement would necessarily lead to this inference. It is submitted that there was a grant in respect of the plaint 'C' schedule property by the defendants in favour of the plaintiffs to use the 'C' schedule property as a way to have access to 'A' and 'B' schedule properties being the only access.

11. The plaintiffs are the owners in possession of plaint 'A' and 'B' schedule properties. They acquired title over 'A' and 'B' schedule properties by virtue of Exts.A1 and A2. The vendor of 'A' and 'B' schedule properties M/s. Joeman Builders Pvt.Ltd, constructed the Apartment Complex, namely JM Towers and handed it over to the prospective purchasers. Defendant No.2 is the Apartment Owners’ Association. Defendant No.1 represents the Apartment Owners’ Association in his capacity as its Presi