Skip to content


Habib Ullah Vs. Mt. Ganesh Dai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All447; 150Ind.Cas.601
AppellantHabib Ullah
RespondentMt. Ganesh Dai and anr.
Excerpt:
- - subsequently when they sold the pucca mouse, they clearly obtained a guarantee from the vendee that he would allow the occupants of the kachcha house to have their egress and ingress through the dehliz. conveyancing in india is generally unilateral in a sense as sale-deeds, mortgage-deeds and the like are all executed by the transferor. the defendant derives his title from ali jan through peare lal and his rights cannot be better than those of ali jan. the defendant who has stepped into his shoes cannot have a better right. i am satisfied that the decision of the lower appellate court cannot be challenged......egress and ingress was through the open land on the east already referred to. fida ali executed a sale-deed in respect of that land in favour of mirza kalb ali beg. one of the conditions stipulated in the sale was that after a certain redemption suit was concluded, the vendors would close their main door on the east and would have their egress and ingress though the khirki on the south, that is to say, through the dahliz now in dispute. it is not clear from the record as to whether, and if so when, the redemption suit ended. there is however no doubt from the recitals contained in deeds subsequently executed by fida ali and others that the redemption suit must have concluded sometime before 20th february 1923, when fida ali and others executed a deed of sale in respect of the house now.....
Judgment:

Niamatullah, J.

1. This is a defendant's appeal and arises out of a suit for several reliefs. The appeal is concerned only with relief (c) as stated in para. 11 of the plaint. The trial Court had dismissed the plaintiff's suit in its entirety. The lower appellate Court had granted relief (c) which; relates to the plaintiff's right of egress and ingress through a dehliz belonging to the defendant. The defendant's house is to the south of the plaintiff's. The plaintiff's house was Kachcha at one time and had a door to the east. It is alleged by him that it had also a khirki or window to the south-east of that house opening into the dehliz of the defendant through which egress and ingress was also possible though it appears that the main entrance to the plaintiff's house was to the east. The plaintiff's house now appears to be in a dilapidated state, but he claims his right of way through the defendant's dehliz.

2. The plaintiff's house and that of the defendant's which is pucca belonged to the same owners Fida Ali and others who also; owned a piece of open land to the east of the plaintiff's house. The main entrance to the house now belonging to the plaintiff (hereinafter called the Kachcha house) was towards the east; the egress and ingress was through the open land on the east already referred to. Fida Ali executed a sale-deed in respect of that land in favour of Mirza Kalb Ali Beg. One of the conditions stipulated in the sale was that after a certain redemption suit was concluded, the vendors would close their main door on the east and would have their egress and ingress though the khirki on the south, that is to say, through the dahliz now in dispute. It is not clear from the record as to whether, and if so when, the redemption suit ended. There is however no doubt from the recitals contained in deeds subsequently executed by Fida Ali and others that the redemption suit must have concluded sometime before 20th February 1923, when Fida Ali and others executed a deed of sale in respect of the house now belonging to the defendant (hereinafter called the pucca house) in favour of one Ali Jan. This sale-dead contains a definite condition to the effect that the vendee who became the owner of the pucca house together with its appurtenance, the dehliz, would allow egress and ingress to the occupants of the Kachcha house through the dehliz. It is quite clear that Fida Ali and others were desirous of disposing of their land lying to the east of their Kachcha house to Mirza Kalb Ali Beg, but as that land was burdened with their right to have grass and ingress across it they agreed with the vendee that they would eventually release that land from that burden and have their egress and ingress through the dehliz of their own puoca house. Subsequently when they sold the pucca mouse, they clearly obtained a guarantee from the vendee that he would allow the occupants of the Kachcha house to have their egress and ingress through the dehliz. There is no doubt whatever that the vendee Ali Jan was bound by the stipulations contained in the sale-deed in his favour. The view of the learned Munsif that it was a purely 'unilateral' covenant cannot be accepted. Conveyancing in India is generally unilateral in a sense as sale-deeds, mortgage-deeds and the like are all executed by the transferor. It cannot be contended that the stipulations contained in the sale-deed or the mortgage deed as the case may be are not binding on the transferees. If the transferee accepts the transfer on conditions stated in the deed, he cannot resile from those conditions.

3. Ali Jan sold the pucca house to one Peare Lal who in his turn sold it to the present defendant, Habib Ullah. Neither of these sale-deeds has reproduced the sondition which was entered in the sale-deed executed in favour of Ali Jan. The learned advocate for the appellant has relied on this circumstance and contended that the condition agreed to by Ali Jan is not binding on Habib Ullah. He refers to Section 40 T.P. Act, and argues that the burden of the obligation can be saddled on him only if he had notice of the stipulations entered in the sale deed in favour of Ali Jan. Assuming Section 40. T.P. Act, is applicable in all other respects I entertain no doubt that the appellant must be fixed with notice of the contents of the registered sale, deed in favour of Ali Jan. The defendant derives his title from Ali Jan through Peare Lal and his rights cannot be better than those of Ali Jan. If Ali Jan had not transferred the pucca house, there can be no doubt that he would have been bound by the conditions entered in the sale-deed in his favour. The defendant who has stepped into his shoes cannot have a better right. In my opinion, the lower appellate Court has taken a correct view of the rights of the parties in holding that the plaintiff who has since obtained the rights of Pida Ali and others in the Kachcha house is entitled to have his egress and ingress through the dehliz appertaining to the pucca house which is now the property of the defendant-appellant.

4. The learned advocate for the appellant has also contended that the plaintiff has not established a right of easement as required by the Easements Act. This is not a case of prescriptive easement. It is not necessary for the plaintiff to establish 20 years' exercise of the right of easement or its continuance till a time within two years before the institution of the suit. The right which has been decreed to the plaintiff by the lower appellate Court is a right arising from a specific grant. Fida Ali and others who were the owners of both the houses at the time when they executed a sale-deed in favour of the defendant's predecessor, Ali Jan had a right to make a reservation in their own favour and to pass the benefit thereof to their assignee who is now the plaintiff in respect of the Kachcha house. I am satisfied that the decision of the lower appellate Court cannot be challenged. The appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //