Raj Kumar and Another vs Darshana Devi and Others

Rakesh Kumar Garg, J.

CM No. 13808-C of 2012

For the reasons mentioned in the application, delay of 102 days in refiling the appeal is condoned.

CM stands disposed of.

RSA No. 4967 of 2012 (O&M)

This is plaintiffs'' second appeal challenging the judgments and decrees of the Courts below whereby their suit for permanent injunction

restraining defendants No. 1 and 2 from putting any lintel, Beam or Karies etc. over the western wall forcibly or illegally as detailed in the plaint

and with consequential relief of mandatory injunction directing defendants No. 1 and 2 to demolish the roof of the shop/house which is likely to be

constructed by them by putting lintel on the said wall, has been dismissed. The instant suit was filed by the plaintiff-appellants against defendant No.

1 Suresh (since deceased) now represented by respondents who are his LRs, regarding the dispute of intervening wall which is towards the

western side house of the plaintiffs and eastern side towards the property of the defendants. It was alleged by the plaintiffs that they had purchased

the house vide sale deed dated 12.8.2002 from Gobind Ram son of Kanwar Bhan. Previously also, there was dispute between the plaintiffs and

proforma defendant No. 3-Kesav Dass now respondent No. 4 pertaining to disputed intervening wall whereby on 14.2.2005, an agreement was

entered by respondent No. 4, who is the vendor of the part of property of defendants No. 1 and 2, waiving all his claims over the said wall and

had assured to construct his eastern wall separately. It was alleged that said agreement was executed in the presence of witnesses. It was further

alleged that said Kesav Dass, after demolishing his house, sold the said vacant plot to defendants No. 1 and 2 and now the defendants, who are

claiming their share in the disputed wall which in fact exclusively belongs to the plaintiffs, are bent upon to put lintel, beam and battons over the

disputed wall. So, necessity has arisen to file the instant suit.

Defendants No. 1 and 2 filed separate written statements. Defendants No. 1 in his written statement stated that the suit is bad for mis-joinder of

necessary parties because defendants No. 2 is not a necessary party as he was neither owner nor in possession of the suit property and had no

concern with the same because he is minor and cannot be sued without his next friend.

On merits, the averments made on behalf of the plaintiffs were controverted stating that defendants No. 1 and 2 had purchased the plot from

Kesav Dass and lintel had already been put by defendant No. 1 on the disputed wall prior to the filing of the suit and at that time, no objection was

raised by the plaintiffs and had subsequently filed the instant suit which is false.

In his separate written statement, defendant No. 2-Harpal pleaded that the agreement between the plaintiffs and Kesav Dass is a created

evidence. Other allegations are controverted and dismissal of the suit was prayed for.

On the pleadings of the parties, the following issues were framed:

1) Whether the plaintiffs are owners in possession of the suit house mentioned in the head note of the plaint if so to what effect? OPP

2) If issue No. 1 is proved, whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP

3) Whether the suit is not maintainable in the present form? OPD

4) Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD

5) Whether the suit is bad for mis-joinder of parties? OPD

6) Whether the suit is false and frivolous and liable to be dismissed with special costs? OPD

7) Relief.

After considering the evidence on record and hearing learned counsel for the parties, the trial Court dismissed the suit holding that the wall in

dispute is joint of the parties and the defendants have every right to use the common wall.

Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-appellants filed an appeal before the First Appellate

Court which was also dismissed. While dismissing the appeal, the First Appellate Court on appraisal of evidence concluded that the wall between

the parties was joint and the plaintiff-appellants were claiming their right to the exclusive use of the said wall only on the basis of an agreement

dated 14.2.2005 wherein it has been recited that Keshav Dass (proforma respondent No. 4) had agreed to relinquish his right in the common wall

to resolve the dispute amicably from the said date of execution of the agreement. However, the said agreement dated 14.2.2005 cannot be relied

upon as the same is not admissible in evidence as the appellants failed to prove the said document in accordance with law.

Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgments and decrees of the Courts below submitting that the

following substantial questions of law arise in this appeal for consideration of this Court:

i) Whether the findings of the Ld. Courts below in deciding the issues No. 1 & 2 in favour of the defendants respondents and against the plaintiffs

appellants are wrong, illegal, perverse, misconceived and against the law and evidence on record?

ii) Whether the document Ex. P1 is not admissible in evidence being unregistered document, especially in the circumstances when the defendants

respondents have not disputed the existence of the said document?

iii) Whether the document Ex. P1 has evidential value in view of proviso to Section 49 of the Registration Act?

iv) Whether the appellant defendant is entitled to protection u/s 53 of Transfer of Property Act?

v) Whether the Ld. Courts below have misread and misappreciated the documents, Ex. P1, Ex. P2 and Ex. D2?

In support of his case, learned counsel for the appellants has vehemently argued that both the Courts below have wrongly held that disputed wall

was joint and the aforesaid findings are contrary to the evidence on record. The agreement dated 14.2.2005 (Ex. P1) whereby proforma

respondent No. 4 had relinquished his right in the common wall to settle the dispute amicably between the parties and thus, the said agreement did

not require registration as this document does not create any right in favour of the appellants and extinguish any right of the respondents. Moreover,

it has been clearly established from the sale deed Ex. P-2 that the disputed wall was separate and exclusive wall of Govind Ram, who executed the

sale deed in favour of the appellants and thus, the appellants were having the exclusive right of the said wall. It is the further case of the appellants

that in view of the proviso to Section 49 of the Registration Act, even an unregistered document can be read and used for collateral purposes and

thus, Ex. P-1 is admissible in evidence and can be relied upon and the Courts below have erred while not relying upon the said agreement and

non-suited them.

On the basis of the aforesaid arguments raised, counsel for the appellants has submitted that the following substantial question of law arise in

this appeal:

Whether the Courts below have misread and misinterpreted the evidence on record resulting into a wrong conclusion and thus, the impugned

judgment and decrees are suffering from perversity?

I have heard learned counsel for the appellants and perused the impugned judgments and decrees of the Courts below.

From the arguments raised, one fact is clearly established on record that the wall in question was a common wall as even from the documents

relied upon by the appellants, it has been established that Kesav Dass, the proforma-respondent No. 4, had relinquished his right in the common

wall to settle the dispute amicably. Thus, the jointness of the wall is not in dispute but the appellants are claiming their right to the exclusive use of

said wall on the basis of agreement Ex. P-1 dated 14.2.2005 vide which vendor Keshav Dass had allegedly agreed to relinquish his right over the

said wall in favour of the appellants. Further argument raised is that the said document has been wrongly ignored on the ground that the same is an

unregistered agreement and the contents of the said document can be taken into consideration for collateral purposes i.e. the proforma respondent

No. 4 has relinquished his right. In fact the aforesaid argument is liable to be rejected outrightly. Admittedly, wall in question was joint earlier and

for the first time vide agreement dated 14.2.2005, the interest/right of the vendor was sought to be relinquished vide said agreement, therefore, it

cannot be said that there was no prior right in favour of the appellants to use the wall in dispute exclusively to say that since there existed a pre-

existing right of the appellants in the wall to use it exclusively, the document in question need not be registered. It is well settled proposition of law

that interest, title and right in an immovable property being created for the first time have to be through a registered document. Thus, the agreement

Ex. P-1 creating right in favour of the appellants for the first time in an immovable property cannot be admitted into evidence being an unregistered

document. Moreover, the contents of the agreement in question have not been proved on record. The appellants have not led any evidence by

producing on record the scribe or any of the marginal witnesses of the said agreement and thus, the contents of the said agreement also remained

unproved. Therefore, the argument that the said agreement can be relied upon for collateral purposes is also without any merit.

No other argument has been raised.

No substantial question of law, as raised, arises for consideration of this Court. Dismissed.