Jose Antony and J.M.Towers Apartment Owners Association v. Joseph Simon and Sabeena Simon

``` CR ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 RSA NO. 111 OF 2006 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 29.08.2005 IN AS 259/2002 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 15.06.2002 IN OS 1322/1999 OF I ADDITIONAL MUNSIFF COURT,ERNAKULAM ``` ## **`APPELLANTS/DEFENDANTS:`** ``` 1JOSE ANTONY, 8/B, J.M.TOWERS CHINMAYA MISSION ROAD, VADUTHALA. ``` ``` 2J.M.TOWERS APARTMENT OWNERS ASSOCIATION CHINMAYA MISSION ROAD, VADUTHALA, REP. BY ITS PRESIDENT JOSE ANTONY. ``` ``` BY ADVS. SRI.P.JACOB VARGHESE (SR.) SRI.GINTO JOSE SRI.T.JEEJAN SRI.V.MANOJ KUMAR SRI.VIVEK VARGHESE P.J. ``` ## **`RESPONDENTS/PLAINTIFFS:`** ``` 1JOSEPH SIMON, S/O JOSEPH ELENJICKAL HOUSE, PUTHIYA ROAD, ELAMKULAM VILLAGE, KALOOR DESOM, KANAYANNUR TALUK. ``` ``` 2SABEENA SIMON, W/O.JOSEPH SIMON ELENJICKAL HOUSE, PUTHIYA ROAD, ``` ``` RSA NO.111 of 2006 ``` ``` 2 ``` ``` ELAMKULAM VILLAGE, KALOOR DESOM, KANAYANNUR TALUK. ``` ``` BY ADVS. R.SANJITH C.S.SINDHU KRISHNAH ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO.111 of 2006 ``` ``` 3 ``` ## **CR** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No. 111 of 2006 --------------------------------------------- Dated this the 2[nd] day of February, 2022 ## **JUDGMENT** 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 ``` RSA NO.111 of 2006 ``` ``` 4 ``` 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 ``` RSA NO.111 of 2006 ``` ``` 5 ``` 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 ``` RSA NO.111 of 2006 ``` ``` 6 ``` 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 President. 12. The plaint 'A' and 'B' schedule properties lie on the north of the apartment complex. The ' C' schedule property is described as a 5 metres wide way on the eastern side of M/s. JM Towers in the north-south direction. The 'C' schedule property has an approximate length of 74 meters. The total extent of 'C' schedule property is 4 cents. 13. The case of the plaintiffs is that at the time of execution of Exts.A1 and A2 in favour of them, the defendants' predecessor in interest had agreed to provide the 'C' schedule way, and in accordance with that agreement, the ``` RSA NO.111 of 2006 ``` ``` 7 ``` 'C' schedule way was formed. 14. According to the plaintiffs, defendants attempted to make obstructions on the plaint 'C' schedule way to prevent the users from accessing it. They have also constructed a gate and an arch across the 'C' schedule way, interfering with the free user of the same by the plaintiffs. 15. The defendants’ challenge is that they have exclusive right over 'C' schedule way. The plaintiffs are not capable of enforcing the agreement based on which they claimed right over the 'C' schedule property. 16. According to the defendants, plaintiffs are not entitled to get relief of prohibitory and mandatory injunctions as prayed. 17. The right of the plaintiffs over 'A and B' schedule properties is not under dispute. The dispute centres around the right of the parties over 'C' schedule way. Exts. A1 and A2 are the title deeds under which the plaintiffs acquired title over 'A and B' schedule properties. There is specific mention in Exts.A1 and A2 by the vendor to the effect that a 5 metres wide way would be formed up to the public road by the builders to have access to 'A and B' schedule properties. Ext.A3 is the agreement executed on the date of execution of Exts.A1 and A2 by the vendor agreeing to ``` RSA NO.111 of 2006 ``` ``` 8 ``` form the way as mentioned in the title deeds. Ext.A3 was not registered. 18. The identity of 'C' schedule way was challenged by the defendants. The Commissioner appointed by the Court below visited the property and prepared Ext.C1. The Commissioner has reported the existence of a way having an average width of 7.5 meters as pleaded in the plaint. Relying on the oral evidence of plaintiff No.1 and Exts.A1, A2, A3 and Ext.C1, the Trial Court held that the plaintiffs established the identity of 'C' schedule property. This finding was confirmed by the First Appellate Court also. 19. The learned counsel for the defendants mainly challenged the admissibility of Ext.A3, the agreement based on which the plaintiffs raised the claim in respect of 'C' schedule way. 20. The learned counsel for the plaintiffs contended that even in the absence of Ext.A3, the pleadings in the plaint along with the recitals in Exts.A1 and A2, [the title deeds in respect of 'A and B' schedule properties], the oral evidence of PW1 and the existence of the way as noted in Ext.C1, would necessarily lead to the inference that a way was formed and provided by the builders/vendors. This is a clear indication of acquisition of easement by grant by the plaintiffs in respect of the 'C' schedule property. ``` RSA NO.111 of 2006 ``` ``` 9 ``` 21. The learned counsel for the plaintiffs further contended that Ext.A3 is admissible in evidence as it comes under the exemption as provided in Section 17(2)(v) of the Registration Act. 22. The relevant part of Section 17 reads thus:- ## “ **17. Documents of which registration is compulsory.** (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (7 of 1871) or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely:- (a) xxx xxx xxx (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) xxx xxx xxx (d) xxx xxx xxx (e) xxx xxx xxx xxx xxx xxx (g) xxx xxx xxx [(1A)The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] 2. Nothing in Clauses (b) and (c) of sub-section (1) applies to- ``` RSA NO.111 of 2006 ``` ``` 10 ``` (i) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx (iv) xxx xxx xxx (v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) xxx xxx xxx (vii) xxx xxx xxx (viii) xxx xxx xxx (emphasis supplied)” 23. Going by Section 17(2)(v) of the Registration Act, the test to be applied is 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. Ext.A3 did not create an interest in the 'C' schedule property; it only created a right to develop a way and a promise to provide a document in respect of the 'C' schedule property. Therefore, the contention of the learned counsel for the appellants that Ext.A3 is not admissible as it had not been registered as provided in Section 17 (1)(b) of the Registration Act,1908, is not ``` RSA NO.111 of 2006 ``` ``` 11 ``` ## acceptable. This view is fortified by the decision of the Apex Court in **K.Arumuga Velaiah v. P.R.Ramasamy and Another [2022 SCC OnLine SC 95].** 24. In the present case, even in the absence of Ext.A3 agreement, the plaintiffs could establish a grant by the vendors in respect of 'C' schedule way to have access to 'A and B' schedule properties. There are specific recitals in Exts.A1 and A2 by the vendors promising to provide 'C' schedule way. It has come out in evidence that a way having a width of 7.5 meters was formed as pleaded by the plaintiffs. Relying on the oral evidence of PW1 and Exts.A1, A2 and C1, report of the Commissioner, both the Courts below concurrently found the existence of the way. The evidence available in this case is sufficient to draw an inference that the way identified by the Commissioner was the 'C' schedule way described in the plaint as a grant to have access to 'A and B' schedule properties. Therefore, the contention of the learned counsel for the appellants that plaint 'C' schedule property was not specifically identified and the plaintiffs failed to establish the right over 'C' schedule property is not acceptable. The finding of the Trial Court and the First Appellate Court that the plaintiffs could establish the identity of 'C' schedule property and they had acquired the right over the way requires no interference. ``` RSA NO.111 of 2006 ``` ``` 12 ``` 25. The specific case of the defendants is that they have exclusive right over 'C' schedule way. According to the defendants, they formed and developed the way and installed the gate, wall, security rooms and other structures. The First Appellate Court and the Trial Court observed that the defendants failed to produce any materials to establish that they have exclusive right over 'C' schedule way. 26. The Commissioner has reported that the constructions were carried out by the defendants in the passage obstructing the way. It was specifically noted by the Commissioner that if the way is obstructed, the plaintiffs' access to 'A and B' schedule properties would be prevented. The First Appellate Court, approving the rights of the plaintiffs over 'C' schedule property which they acquired by way of express grant, held that the defendants have no right over 'C' schedule way and the obstructions caused by the defendants on the way by erecting gate, arch and other structures would definitely cause hindrance for the plaintiffs to have easy access to the 'A and B' schedule properties. The First Appellate Court, therefore, granted a mandatory injunction in favour of the plaintiffs directing the defendants to remove the unauthorised constructions made in 'C' schedule pathway and confirmed the finding of the Trial Court that the plaintiffs are entitled to the prohibitory injunction as prayed. ``` RSA NO.111 of 2006 ``` ``` 13 ``` 27. On an analysis of the materials placed before the Court, it is evident that the plaintiffs have established right over 'C' schedule way to have access to 'A and B' schedule properties, and the defendants failed to establish any right over 'C' schedule property. There is an obligation on the defendants not to invade or threaten the right of the plaintiffs over the 'C' schedule way. The plaintiffs have established all the ingredients for getting prohibitory and mandatory injunctions. The First Appellate Court rightly found that the plaintiffs are entitled to a mandatory injunction. The First Appellate Court has drawn the necessary inferences and presumptions that would apply on the facts and circumstances of the case. The findings of the First Appellate Court, therefore, require no interference. The substantial questions of law are answered against the appellants. The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed. ``` Sd/- ``` ``` K.BABU JUDGE ``` VPK