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inder Lal and ors. Vs. Abdul Salam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 380 of 1969
Judge
Reported inAIR1983Raj57
ActsRegistration Act, 1908 - Sections 49; Evidence Act, 1872 - Sections 90; Specific Relief Act, 1963 - Sections 39
Appellantinder Lal and ors.
RespondentAbdul Salam and ors.
Appellant Advocate A.K. Bhandari,; Arun Kumar Bhandari and; Gopi Chand Agar
Respondent Advocate P.N. Dutta, Adv.
Cases ReferredIn Suhran Khan v. Bhatt Jyotish Rai (supra
Excerpt:
.....of this case, he was convinced that the trial court was perfectly correct in holding that the ravish on the north of the plaintiff's house in the first floor is not proved as joint of the plaintiffs and the defendant. in this document, it was clearly stated that staircase, latrine, chowk and disputed ravish were joint learned additional district judge committed a serious error in observing that ex. 5 also the learned additional district judge was clearly wrong in holding it inadmissible. thus there is no reliable or convincing evidence on record to show that the plaintiffs had been using the ravish for coming to their properties for last 20-30 years......'ikdhara' belonging to the defendant. learned trial court also found that the way leading to the joint ravish through eastern staircase was not the ordinary and easily approachable way, but there was other alternative and easy way to go to the properties of the plaintiffs. learned trial court thus held that the ravish was not proved to be a joint property and decided issue no. 1 against the plaintiffs. as regards issue no. 5, learned trial court held that the plaintiff in his suit has shown his right on the ravish on the basis of ownership, but the plaintiff has not led any evidence to show that he was using the ravish under the ease-mentary right, by treating the ravish as belonging to the defendant. learnedtrial court thus decided issue no. 5 alsoagainst the plaintiffs.2. the.....
Judgment:

N.M. Kasliwal, J.

1. This is a plaintiff's second appeal in a suit for injunction dismissed by both the lower courts. The controversy now left to be determined in this second appeal relates to a ravish existing in-front of the house of the defendant on the first floor towards thenorth stretching from west to east as shown with letters 'X-Y' in the site plan Ex. 1 annexed with the plaint. The plaintiff had come forward with a case in the plaint that the ravish was joint one of the parties. The plaintiffs entered the ravish through a door and passed and repassed through it by passage to the staircase facing east, which leads to the chowk. The alternative case set up by the plaintiffs was that if this ravish was not held jointly owned and possessed by the parties then the plaintiffs had acquired a right of casement to pass and re-pass through the ravish as they had acquired this right continuously without interruption for the last 30 years. The case of the contesting defendants -- respondent Abdul Razak was that the disputed ravish was exclu-sivly owned and possessed by him. He emphatically denied that the defendant ever used this ravish. The trial court had framed six issued, but I will only mention issues Nos. 1 and 5 which are necessary for the determination of this appeal:

(Hindi matter omitted)

The trial court found that the plaintiff Inder Lal, P. W. 1 was unable to state clearly the period since when he was using the ravish for passing and repass-ing. As regards the documents Ex. 4 and Ex. 5, the learned trial court held that the plaintiff was unable to state clearly in his statement how these two documents proved the ravish to be joint. Learned trial court also took into consideration the inspection note made by his predecessor in office, from which it was clear that in order to reach the disputed ravish, it was necessary to pass through an 'Ikdhara' belonging to the defendant. Learned trial court also found that the way leading to the joint ravish through eastern staircase was not the ordinary and easily approachable way, but there was other alternative and easy way to go to the properties of the plaintiffs. Learned trial court thus held that the ravish was not proved to be a joint property and decided issue No. 1 against the plaintiffs. As regards issue No. 5, learned trial court held that the plaintiff in his suit has shown his right on the ravish on the basis of ownership, but the plaintiff has not led any evidence to show that he was using the ravish under the ease-mentary right, by treating the ravish as belonging to the defendant. Learnedtrial court thus decided issue No. 5 alsoagainst the plaintiffs.

2. The plaintiffs aggrieved against the judgment and decree of the trial court filed an appeal, which came up for consideration before the Additional District' Judge, Jaipur City. Strong reliance was placed on documents Ex. 4 and Ex. 5 and it was contended that the aforesaid documents clearly and unambiguously proved that the ravish was a joint one since the time the Haweli was built and that the plaintiffs used to come through this ravish to their house by ascending the staircase which lies towards the left to the entrance of the haveli facing east. Reliance was also placed on documents Ex. A-1 and Ex. A-2. If was also contended that even the documents Ex. A-l and Ex. A-2 adduced by the defendant, supported the contention of the plaintiff that the ravish was also joint and was used as such. The learned Additional District Judge as regards Ex. 4 of March 1890 purporting to have been executed as mortgage by fine Sualal in favour of Khuda Bux and Hasan etc., forefathers of the defendants, observed that this document was unregistered and was not an original one. It was further observed that had this document been produced as original, it would have carried some weight and its recital would have been taken into consideration, even though the deed was unregistered, but as it was a copy of the original, no notice of it about the genuineness of the document could be taken under Section 90 of the Evidence Act Learned Additional District Judge, therefore, excluded this document from consideration. As regards Ex. 5 sale deed of 1917 alleged to have been executed by the forefathers of plaintiffs in favour of the forefathers of the defendants learned Additional District Judge observed that though this document was very old one and its contents could be presumed to be genuine, but the statements contained in this document amounted to an admission that the staircase was joint and as such could not be used by the plaintiffs in their favour because under Section 21 of the Evidence Act, an admission could not be proved by a party or by his representative in interest in his own favour. As regards Ex. A-1 dated March 1986, alleged to have been executed by one Bachu Lal S/o Kalu Ram in favour of Baksha s/o Panna grandson of NoorKhan and Hasan Chand s/o. Baksha fore fathers of the defendant, the learned Additional District Judge observed that though the staircase in the chowk facing east has been mentioned as joint in this document, but did not say as to who were jointly owning this staircase. According to the learned Additional District Judge, this document further stated that Kalu Ram has another portion in the house of the haweli towards south. There was also evidence that there were other cosharers in this house including plaintiffs. It could not, therefore, be said with certainty as to among whom this Sal mentioned in Ex.-A-1 was joint. It could be joint with other co-sharers but not with the plaintiffs. As regards the mention of the fact that the stair-case facing east was mentioned as exclusive property of the defendants in Ex, A/2, the learned Additional District Judge remarked that the defendant was not entitled to take advantage of this statement being an admission in his own favour. The learned Additional District Judge then considered the oral evidence and concurred with the finding of the trial court. Learned Additional District Judge thus held that taking over the entire position of this case, he was convinced that the trial court was perfectly correct in holding that the ravish on the north of the plaintiff's house in the first floor is not proved as joint of the plaintiffs and the defendant.

3. It was strenuously contended by Mr. Bhandari, learned counsel for the plaintiffs-appellants that the learned lower court committed an apparent error of law in ignoring Exs. 4 and 5. It was contended that Ex. 4 was a mortgage deed of March, 1890 executed by one Sualal in favour of Khuda Bux and Hasan etc., who were forefathers of the defendants. In this document, it was clearly stated that staircase, latrine, chowk and disputed ravish were joint Learned Additional District Judge committed a serious error in observing that Ex. 4 placed on record was a copy of the original, while in fact, it was an original one. In the year 1890, there was no such law in erstwhile Jaipur State that such document was inadmissible in evidence for being unregistered. This document was more than 30 years old and a presumption about its genuineness should have been drawn under Section 90 of the Evidence Act. Learned AdditionalDistrict Judge had himself observed that had this document been produced in original, it would have carried some weight and its recital could have been taken into consideration. Reliance is placed on an unreported decision of this court in Ram Pal v. Dwarka Das (S. B. Civil Revision No. 307/5) decided on 24th April, 1952. In the aforesaid case, the question was, whether the mortgage deed was inadmissible in evidence for want of registration. Sharma, J.. while dealing with the old Hidayats published in accordance with the resolutions of the council of the Jaipur State observed that though the document being in the nature of mortgage deed, requires registration, but there was no provision in the Stamp Act or Resolutions that if the compulsorily registrable document is not registered it would not be admissible in evidence. Only provision was regarding realisation of the prescribed penalty and at the most the prescribed penalty could be recovered, but it could not be said that the document was altogether inadmissible. The argument that Section 49 of the Jaipur Registration Act was applicable, was negatived on the ground that it applied only to the documents executed after said Registration Act came into force. The Jaipur Registration Act came into force on 30th October, 1945 when it was first published in the Jaipur Gazette. The document in that case was executed on 24th June, 1945 and as such the provisions of the Jaipur Registration Act did not govern the case. It was thus contended that Ex. 4 in the present case was of the year 1890 and there was no question of holding such document as inadmissible. Another argument in this regard by Mr. Bhandari was that in any case the document Ex. 4 could be taken into consideration for collateral purpose to show the admission that the ravish in question was a joint one. Reliance is placed on Chhagan Lal Sobharam v. Madan Lal Shobharam (1961 MP LJ 762) in which it was observed as under:--

'Under Section 49, Registration Act, although a document required by law to be registered is not registered, it cannot be allowed to affect an immovable property comprised therein nor can it be received in evidence of any transaction affecting such property. Yet such document can be admitted to prove an admission of a party with regard tothe character of the property, i.e. whether it is joint or otherwise'.

4. As regards Ex. 5. Mr. Bhandari contended that it was a sale deed of 1917 executed by the forefathers of the plaintiffs in favour of the forefather of the defendants. There is no question of any admission made in favour of the plaintiffs in this case. The document recited that the staircase on the left side on the entrance of the haweli facing east was joint. The forefathers of the defendant had purchased the property subject to the restrictions that the staircase on the left side of the entrance of the haweli was joint. It is thus contended that the learned Additional District Judge committed a clear error of law in ignoring this document Ex. 5 also and it vitiates the entire findings regarding the ravish in question.

5. Mr. Dutta, learned counsel for the defendant respondent Abdul Razak on the other hand contended that in 'he erstwhile state of Jaipur, the mortgage deed was required to be registered. There was also law that the documents which were compulsorily registrable, were inadmissible in evidence in case the same were not registered. Reliance in this regard has been placed on Anandi Lal v. Geegla (J.L.R. Vol 1 Part III) and Burhan Khan v. Bhatt Jyotish Rai (J.L.R. Vol 1 Part X).

6. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. Learned counsel for the parties placed for the perusal of this court compilation of Hidayats from 1-4-1883 to end of 1886, published in Jaipur Government Press in February, 1887. In this Hidayat though there is a provision for registration of the mortgage deeds and certain other documents, but there is no provision that in absence of such registration, the document will not be admitted in evidence in court. In another Hidayat from January, 1894 to the end of December 1896 published in Gazette of Jaipur State of December. 1897, it has been mentioned that without registration a document could not be completed and as such the same was inadmissible in evidence in the court. In this compilation, it is mentioned that Hidayats in this regard are already existing but

Mr. Dutta, learned counsel for the defendants was, unable to show any pre-vious Hidayats containing this rule that in the absence of registration, the document would be inadmissible in evidence. In the case Ram Pal v. Dwarka Das (supra), Hon'ble Sharma, J.. has also taken the same view. The compilation of Hidayats from 1st April, 1883 to end of 1886 does not show the existence of such law. The second publication of computation of Hidayats is from January 1894 onwards. This compilation also does not itself contain such provisions of law that for want of registration, the document would be inadmissible in evidence. It only makes a mention of some earlier Hidayats which are not available for consideration. In any case, the document Ex. 4 is of 1890 and as such also the subsequent compilation of Hidayats commencing from 1st January, 1894 can have no application.

7. I am further in agreement with the view taken in Chhagan Lal Shobha Ram v. Madan Lal Shobha Ram (supra) by Neweskar, J., that where a document required by law to be registered, is not registered it cannot be allowed to affect an immovable property comprising therein nor it can be received in evidence of any transaction affecting such property under Section 49 of the Registration Act. Yet such document can be admitted to prove an admission of a party with regard to the character of the property i. e., whether it is joint or otherwise. In Anandi, Lal v. Geegla (supra), the objector was claiming right on the basis of the document itself for creating rights in the immovable property as mortgagee. This in that case the question of admissibility of a document for collateral purpose was not in question. Even in that case it was observed that on the basis of unregistered mortgage deed, suit for money could be filed if no incumbrance or bar was claimed against any immovable property.

8. In Suhran Khan v. Bhatt Jyotish Rai (supra) it was held that in the absence of registration the document cannot create a mortgage, A decree for redemption was given in favour of the plaintiff as the period of mortgage was only two years and the defendant had remained in occupation for more than 12 years. The above case also renders no assistance on the question of admissibility of Ex. 4 for the purpose of determining the nature of possesion of the parties over the ravish in question. It was not disputed by Mr. Dutta, learnedcounsel for the defendant-respondent that Ex. 4 was original and not a copy. This document was of more than 30 years old and as such a presumption about its genuineness will have to be drawn under Section 90 of the Evidence Act. Sua Lal had made a mortgage of his properties in favour of the forefathers of the defendant by this document Ex. 4 and there is a clear recital in it that the ravish in question shall remain joint. It is neither the case of the defendant nor proved by any documentary evidence that he or his ancestors purchased this ravish and became its owner exclusively by such purchase. Thus from the recital of Ex. 4, the ravish in question is proved beyond any manner of doubt to be a joint one. As regards Ex. 5 also the learned Additional District Judge was clearly wrong in holding it inadmissible. There is no question of any admission of any party in his own favour. It is a sale deed by the forefathers of the plaintiff in favour of the forefathers of the defendant. The original of the this document has not been produced by the defendants though they were called upon to do so by the plaintiffs and secondary evidence of this document has been permitted by the courts below. This document though does not directly mention about the ravish but it speaks about the staircase on the left of the entrance of the haweli as joint.

9. I find force in the contention of Mr. Bhanndari that there was no purpose in keeping this staircase to be joint of the parties in case it is not used for going into the ravish in question, because in fact ihere are no other properties belonging to the plaintiffs for which this staircase could be used. Thus this document EX. 5 cannot be left out of consideration as done by learned Additional District Judge and it lends support to the case of the plaintiffs.

10. After holding that the ravish in question is joint one, the question further arises what relief should be granted to the plaintiffs. Generally, speaking in matter of immovable properties where one co-owner ousts or dispossesses, a decree for mandatory injunction should be granted in favour of the ousted co-owner. Similarly, in case of encroachment of common land, one of the co-owners can take an objection, but the question of demolition and injunction to be granted or withheld can be consider-ed according to the cricumstances of each case.

11. Taking in view the facts and circumstances of this case, it is apparent from Ex. 1, site plan that the ravish x.y. is in front of the entire properties belonging to the defendant shown by blue colour. The ravish in question is situated in first floor. The plaintiffs in order to reach their properties through the ravish in question have to first go through the staircase facing east and then have to pass through a Chandani or Ikdhara belonging to the defendant and then have to climb certain steps inside Chandani and again step down some steps to come to the ravish in question. If has come in evidence of Inder Lal plaintiff himself that the staircase facing east is closed by the defendants for the safety of their properties. It is also borne out from the evidence placed on record that this ravish is not being used by the plaintiffs for coming to their properties for a large number of years.

12. I agree with the finding of the lower courts in this regard that from the statment of the plaintiff this conclusion could not be arrived at easily that the ravish was used by the plaintiffs jointly with the defendant. Thus there is no reliable or convincing evidence on record to show that the plaintiffs had been using the ravish for coming to their properties for last 20-30 years. Admittedly, there is another way through the staircase facing north which is more easy and convenient for going to the properties of the plaintiffs. This staircase was being used by the plaintiffs at the time of filing of the suit and even from long before. If any injunction is now granted in favour of the plaintiffs merely on the ground of their joint ownership on the ravish in question, it would not be beneficial in the interest of both the parties and would create furlher complications.

13. Thus taking in view the situation of the properties, long disuse of the joint ravish by the plaintiffs, an easy and more convenient alternative way for going to the properties of the plain-tiffs, I hold that the plaintiffs are not entitled to any mandatory injunction and can be compensated by award of money in lieu of injunction.

14. Taking in view the entire facts and situation of the properties etc., a compensation of an amount of Rupees1,000/- would be sufficient to compensate the deprivation of the joint right of the plaintiffs in the ravish in question. The defendant would pay the amount of Rs. 1,000/- to the plaintiffs within three months from today or deposit the same in the trial court, failing which the plaintiffs would be entitled to a perpetual injunction in their favour with regard to the ravish in question and will have a right of passing through the ravish in dispute to go in their properties. As the plaintiffs have substantialy succeeded in their claim, they would be entitled to costs of all the courts.


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