RSA-680-2008 (O&M)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

MOHINDER SINGH

JASWANT KAUR AND ORS.

CORAM:

Present:

HARKESH MANUJA,

By way of present appeal, challenge has been laid to the

judgments and decrees dated 07.04.2005 and 30.10.2007 passed by

the Courts below whereby, suit for mandatory injunction filed at the

instance of ap

2.

one Iqbal Singh filed a suit for mandatory injunction with the following

prayer clause:

2008 (O&M)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Pronounced on:

MOHINDER SINGH

Versus

JASWANT KAUR AND ORS.

HON'BLE MR. JUSTICE HARKESH MANUJA

Mr. Paramvir Singh, Advocate for the appellant.

Mr. Saurabh, Advocate for

Mr. M.S. Longia, Advocate for respondent Nos.1 and 2.

Mr. Munish Gupta, Advocate for resp

****

HARKESH MANUJA, J. (ORAL)

By way of present appeal, challenge has been laid to the

judgments and decrees dated 07.04.2005 and 30.10.2007 passed by

the Courts below whereby, suit for mandatory injunction filed at the

instance of appellant-plaintiff No.1 was dismissed by the Courts below.

Briefly stating, the appellant being plaintiff No.1 along with

one Iqbal Singh filed a suit for mandatory injunction with the following

prayer clause:-

“Suit for mandatory injunction directing

from removing the encroachment by demolishing the Bore and

cutting guava trees planted in Rasta marked A. B. C. D.

measuring 2 Gathas in width and 36 Gathas in length, carved

out in Khewat / Khatauni 84/135, Khasra No. 10// 1min, as

shown in site plan attached, situated in the area of villa,

1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA-680-2008 (O&M)

Reserved on: 08.10.2025

Pronounced on: 10.12.2025

Date of upload: 12.12.2025

........Appellant

........Respondents

HARKESH MANUJA

Mr. Paramvir Singh, Advocate for the appellant.

Mr. M.S. Longia, Advocate for respondent Nos.1 and 2.

Mr. Munish Gupta, Advocate for respondent No.3.

By way of present appeal, challenge has been laid to the

judgments and decrees dated 07.04.2005 and 30.10.2007 passed by

the Courts below whereby, suit for mandatory injunction filed at the

plaintiff No.1 was dismissed by the Courts below.

Briefly stating, the appellant being plaintiff No.1 along with

one Iqbal Singh filed a suit for mandatory injunction with the following

“Suit for mandatory injunction directing the Defendants

from removing the encroachment by demolishing the Bore and

cutting guava trees planted in Rasta marked A. B. C. D.

measuring 2 Gathas in width and 36 Gathas in length, carved

out in Khewat / Khatauni 84/135, Khasra No. 10// 1min, as

site plan attached, situated in the area of villa,

2008 (O&M)

Reserved on: 08.10.2025

12.2025

12.2025

s

By way of present appeal, challenge has been laid to the

judgments and decrees dated 07.04.2005 and 30.10.2007 passed by

the Courts below whereby, suit for mandatory injunction filed at the

plaintiff No.1 was dismissed by the Courts below.

Briefly stating, the appellant being plaintiff No.1 along with

one Iqbal Singh filed a suit for mandatory injunction with the following

the Defendants

from removing the encroachment by demolishing the Bore and

cutting guava trees planted in Rasta marked A. B. C. D.

measuring 2 Gathas in width and 36 Gathas in length, carved

out in Khewat / Khatauni 84/135, Khasra No. 10// 1min, as

site plan attached, situated in the area of villa,

RSA-680-2008 (O&M) 2

Khairabad, HB No. 52, Tehsil and Distt. Ropar, as per fard

Jamabandi for the year of 1988-89, vide agreement Deed

dated 13-3-88, between the plaintiffs and defendant No. 1,

and for recovery of Rs. 40000 / - i.e. Rs. 20,00%-for each of

the plaintiffs for violation of mandatory conditions as laid down

in the agreement Deed dated 13-3-1988.”

3. As per the plaint, appellant-plaintiff No.1 claimed himself

to be owner in possession of land forming part of Khewat Khatauni

No.89-141 Khasra Nos.10//9/2(3-18), and 10//9/6/1(4-0) in the area of

Village Khairabad Hadbast No.62, Tehsil and District Ropar. It was

further pleaded that plaintiff No.2, namely, Iqbal Singh owned land

comprised in Khasra No.10/10 (8-0) whereas, respondent No.1-

defendant No.1 owned land forming part of Khasra No.10// 1 min and

10//8/1.

4. Further, it was pleaded that all the aforementioned 3

parcels of land had no ‘rasta’ and accordingly, an agreement dated

13.03.1988 was executed between the parties whereby, a passage

measuring 2 gathas in width and 36 gathas in length forming part of

Khasra Nos. 10//1 min, 9/2 and 10 was left –carved out. The plaintiffs

also pleaded that the aforementioned ‘rasta’ remained under utilization

by the owners under the agreement dated 13.03.1988, however, some

time back, respondent No.1-defendant No.1 transferred her land in

favour of her son Kehar Singh-respondent No.2-defendant No.2 on

10.02.1995 and thereafter, he has got the entries in the revenue

records changed as ‘gair mumkin tubewell’ and blocked the

passage/rasta. Hence, the suit.

5. Upon appearance, separate written statements were filed

on behalf of respondent Nos.1 and 2. Primarily, it was pleaded that the

RSA-680-2008 (O&M) 3

agreement dated 13.03.1988 was a forged and fabricated document.

Besides, the value of the property in dispute being more than Rs.100/-,

the document dated 13.03.1988 required registration and in the

absence thereof, it created no right, title or interest in favour of the

appellants-plaintiffs. Replication to the written statement was filed on

behalf of the appellant-plaintiff while reiterating the stand taken in the

plaint.

6. Based on the pleadings of the parties, following issues

were framed:-

1. “Whether the defendant No. 1 had left the rasta Marked

ABCD measuring 2 gathas in witdth and 36 gathas in length?

OPP

2. Whether the plaintiff has left Rasta measuring 2 gathas from

land upto the length of 80 gathas in Kh. No. 10//9/2 and 10//10

as alleged? OPP

3. Whether the defendants have dug a tube-well in the passage

and planted guava trees in the passage and caused the

obstruction?OPP

4. Whether the suit is not maintainable in the present form?

OPD

5. ⁠Whether the plaintiffs have no locus-standi to file the present

suit?OPD

6. Whether the suit is within limitation? OPD

7. Whether the plaintiffs are estopped by their act and conduct?

OPD

8. Whether the plaintiffs are entitled to mandatory injunction as

prayed for? OPP

9. Whether the plaintiffs are entitled for damages, if so, to what

effect? OPP

10. Relief.”

7. It may be pointed out here that while the suit was fixed for

recording of plaintiff’s evidence, plaintiff No.2 namely, Iqbal Singh

prayed for withdrawal of suit on his behalf and the said prayer was

RSA-680-2008 (O&M) 4

granted vide order dated 16.09.2002. However, the appellant-plaintiff

No.1 continued to pursue the suit in his individual capacity.

8. Learned trial Court vide judgment and decree dated

07.04.2025 dismissed the suit filed at the instance of appellant-plaintiff

No.1 inter alia for the reason that though, the agreement dated

13.03.1988 was proved on record as Ex.P-1, however, the same

merely remained as paper transaction been never acted upon. It was

further recorded that the agreement dated 13.03.1988 being

unregistered did not create any right, title or interest in favour of the

parties and also that the suit filed at the instance of appellant-plaintiff

No.1 was barred by limitation.

9. Aggrieved thereof, appellant-plaintiff No.1 filed first

appeal, however, the same came to be dismissed vide judgment and

decree dated 30.10.2007 passed by the Court of learned Addl. District

Judge, Ropar. In addition to the upholding of the findings recorded by

the learned trial Court, it was also expressed that since only a carbon

copy of agreement dated 13.03.1988 was produced on record, the

same was inadmissible in evidence. Aggrieved of the same, the

appellant-plaintiff No.1 filed the present appeal which was initially

dismissed vide judgment dated 15.01.2009, however, in civil appeal

No.6706 of 2013 (Mohinder Singh vs. Jarnail Kaur (D) Thr. LRs)

vide order dated 11.09.2019, the Hon’ble Supreme Court remitted the

matter for fresh adjudication with the following observations:-

“On this short ground, we allow this appeal and remit

the matter to the High Court. We make it clear that we have

not expressed any opinion on the merits of the dispute. It is for

the High Court to decide whether any substantial question(s)

of law arises and the appellant before us is entitled to any

RSA-680-2008 (O&M) 5

relief or not. With these observations, the civil appeal is

disposed of. Pending applications, if any, stand disposed of.”

10. In pursuance of the above, in the main appeal, learned

counsel for appellant-plaintiff No.1 submitted that the agreement

dated 13.03.1988 was proved on record as Ex.P1 and the same was

duly acted upon between the parties with land comprised therein been

utilized as passage followed by the recording of the revenue entries in

the form of jamabandis for the year 1988 till 1999 which were proved

on record as Ex. P-2 to P-6 and P-8 and also in the khasra girdawaris

w.e.f. Kharif 1988 till Rabi 1989 proved on record as Ex.P-15 and

Ex.P-16. He thus submitted that rather than going by the oral

testimonies of the witnesses PW-1 and PW-2, the Court was required

to rely upon the aforementioned revenue entries with respect to the

user of the land in terms of agreement dated 13.03.1988. He also

submitted that even the oral testimonies were only regarding the

present situation and were not regarding the possession between

1988 to 1989. In this regard, he placed reliance on judgment passed

by this Court in case of Shri Partap Singh (Dead) Through LRs, and

Ors. Vs. Shiv Ram (Dead) Through LRs. reported as 2020(2) RCR

(Civil)120.

10.1 Learned counsel also contended that the agreement

dated 13.03.1988 did not require any registration in terms of Section

17 of The Registration Act, 1908. He placed reliance upon a decision

passed in case of “Varghese Paul Vs. Narayanan Nair” reported as

1999(4) RCR (Civil), 30 and submitted that the registration was not

required as the valuation of right been derived under Ex.P-1 was to be

considered for the purpose of Section 17(1)(b) and not against the

RSA-680-2008 (O&M) 6

value of the property forming part of the agreement. He thus submitted

that the document Ex.P-1 been unregistered was even required to be

relied upon for the purpose of evidentiary value. Para No.3 of the said

judgment being relevant is extracted hereunder:-

“3. Section 17 of the said Act describes about the

documents of which registration is compulsory and

provides in clause (b) that a document in the nature of

"other non-testamentary instrument 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" (emphasis supplied), is required to be

registered. A reading of Ext. A1 as mentioned above

certainly creates certain right in favour of the parties and

also extinguishes certain rights on the third parties to

the extent that has been created on the other. But, the

issue is merely because there is such a document

creating/extinguishing rights over immovable property,

does not require to be registered in terms of Section

17(1)(b) unless it is shown that the value of the right title

or interest so created or extinguished, is "of the value of

one hundred rupees and upwards" ? In other words, the

value is relatable not to the land or immovable property

whereto or wherefrom such right is created or

extinguished; but with reference to "any right, title or

interest, whether vested or contingent", so created or

extinguished. So, the value of the right of interest that

has been created or extinguished is to be borne in mind

while considering whether the document like Ext. A1 is

required to be registered or not. Though in the Written

Statement it had been contended that the document is

required to be registered in terms of section 17 of the

Registration Act, what is the value of the right created or

extinguished in terms of Ext. A1 is not specifically

pleaded. On the other hand, the nature of the evidence

RSA-680-2008 (O&M) 7

tendered by the defendants in support of the contention

in the Written Statement is with reference to the value of

the land over which such right is created or from which it

has been extinguished. Thus, the defendants were

making a plea based on Section 17 not with reference

to the value of the right or title created or extinguished,

but with reference to the value of the immovable

property on or from which any such right is created or

extinguished. When the defendants thus did not raise a

plea with reference to the value of the right or interest

so created or extinguished, the trial Court should not

have the on strength of Ext. B3 which proves only the

value of the land, jumped to the conclusion that the

document is registerable in terms of Section 17(1)(b).

The trial Court and the appellate court ought to have

considered the nature of the right created or

extinguished in terms of Ext. A1 while deciding whether

the document was required to be registered or not.”

10.2 Learned counsel for the appellant also relied upon

judgment passed by Telangana and Andhra Pradesh High Court in

“Dwara Satyanarayana Vs. Malladi Bhanumathi and Others”

reported as 2016(3) ICC 788 . Paragraph Nos. 6 and 8 thereof are

reproduced hereunder for reference:-

“6. In the decision in Musunoori Satyanarayana Murti, the

issue is in regard to the plaintiffs right to let out drainage

water through the drainage channel passing through the

defendants fields and such right is based upon an

easementary right granted to the plaintiff under a

document executed by the father of the defendant and it

is a letter. The Madras High Court noted that under

section 6(c) of the Transfer of Property Act an easement

cannot be transferred apart from the dominant heritage

and that section 54 of the Transfer of Property Act taken

along with Section 6(c) would appear to contemplate the

transfer of an existing easement as distinguished from

RSA-680-2008 (O&M) 8

the creation of the imposition of a new easement and

that there is a clear distinction between the transfer of

an existing easement and the creation or grant of a new

easement and that the transfer of an existing easement

is the act of the dominant owner and is inseparable from

the transfer of the dominant heritage, while the creation

of a new easement is the act of an owner imposing a

burden on his property. On the above reasoning the

Madras High court held that the grant of an easement

does not involve such a transfer of ownership in

immovable properties as is contemplated by section 54

of the Transfer of Property Act and hence, the said

document does not require registration. In the cited

decision, the decision in Bhagwan Sahai v. Narasingh

Sahiah [(1909) 31 ALL.612] was referred to, wherein it

was held as follows:

It seems clear to me that the creation of a right of

easement by grant is not such a transfer of ownership

as is contemplated by Section 54 of the Act. Where

under that section an easement is transferred it must be

so transferred along with the dominant heritage. There

is no other way of transferring it and this arises by

reason of the nature of the right. It exists only for the

benefit of the heritage and to supply its wants. There is

nothing in law which necessitates the creation of an

easement being evidenced by writing.

8. The said document was executed on 15.05.1996 in

favour of the plaintiff by Krishnarao @ Krishnamurthy,

S/o Satyanarayanamurthy, who is said to be the father

of the defendants 1 and 2. In this document, it is stated

that the said Krishnarao, the executant of the document,

had self acquired the properties in Rs. Nos. 290/1, 276,

275/1 and 275/6 and that he had provided a way to the

Northern portion of his lands from Vadapalli

Chandravaram punta which is on the South and that the

plaintiff Satyanarayana is provided way from the said

passage to the land sold to him i.e., land in S. No. 275/1

and 275/6 to go to his lands from Southern side

RSA-680-2008 (O&M) 9

Vadapalli to Chandravaram punta. It is further stated in

this document that through the said passage tractors,

carts, cattle and agricultural implements can be taken

and for the same no objection would be raised and that

the document is executed with consent. The document

was signed by the said Krishnarao @ Krishnamurthy

and was attested by two witnesses and also bears the

signature of the scribe. It was executed on non judicial

stamp paper of the value of Rs. 100/-. A plain reading of

the document shows that already the executant of the

document had provided a right of way from a punta to

his lands and that he had permitted the said

Satyanarayana to use the same passage to reach his

land, which was sold to him i.e., the land in S.No. 275/1

and 275/6. Therefore, under this document, in the well

considered view of this Court, licence is granted to

Satyanarayana, the plaintiff, to use the same passage

which was already in existence and which was provided

for the lands of the said Krishna Rao @ Krishnamurthy,

the executant of the document. Admittedly, no title or

ownership over the said passage is created under the

document in favour of Satyanarayana, the plaintiff, who

is the beneficiary under the document. He was only

permitted to reach his lands through the said passage,

which passage the executant of the document has

already provided for his lands. Therefore, to my mind

the document in question created no right in immovable

property; and, only irrevocable permission was

accorded under it to use the existing passage by

granting licence so to say. Viewed thus, this court finds

that the document in question does not require

registration. Though one of the contentions of the

defendants, who are objecting for marking of the

document on the ground that it requires registration, is

also that the said document is a forged document, that

aspect need not be considered by this Court in this

Revision petition as it is for the trial Court to go into the

said aspect at the appropriate stage, in case the

RSA-680-2008 (O&M) 10

document is eventually admitted in evidence and

necessary evidence is adduced by both the sides to

prove and disprove the document.”

10.3 Learned counsel for the appellant emphasized while

submitting that the Courts below went wrong while dismissing the suit

filed at the instance of appellant-plaintiff No.1, being barred by

limitation. He submitted that though under Section 6 of the Specific

Relief Act, 1963, a suit can be filed within 6 months of the date of

dispossession, however, even if the said remedy was not availed, the

suit for mandatory injunction could always be entertained within three

years from the date of cause of action and thus, the suit filed at the

instance of appellant-plaintiff No.1 was not to be dismissed being

barred by limitation.

11. On the other hand, learned counsel appearing on behalf

of respondents submitted that Iqbal Singh whose land forming part of

killa No.10/1 was to be utilized under the agreement dated 13.03.1988

never acted thereupon and always remained in cultivation of that land

and this fact was also traceable from the khasra girdawari entries

Ex.P-16 from Rabi 1990 till Rabi 1994. He thus, submitted that the

agreement though took place between the parties but it was never

acted upon. He also submitted that the agreement dated 13.03.1988

was since creating valuable rights in the property and the same was

thus , required to be registered. In this regard, he placed reliance

upon decision rendered by Rajasthan High Court in case of “Shree

Chand and Ors. vs. Civil Judge (Sr. Div.) and Anr. reported as 2016

AIR Rajasthan 191. Para Nos. 9 and 10 of the said judgment are

reproduced hereunder:-

RSA-680-2008 (O&M) 11

“9. Apart from that, even if for the sake of arguments, it is

admitted that conferment of right of way is a separate

right independent of the sale of land, even then, in my

considered opinion, such right of way can be conferred

by a registered document only. As per the document in

question and as per the claim of the petitioners

themselves, the respondent agreed to provide them a

nine feet wide way over his other land. What are the

consequences of such conferment? In my opinion as a

result of such conferment right, title or interest in the

land comprising in the way which was vested in

respondent, got extinguished and limited and right to

use it as a way got created and declared in favour of the

petitioners. Thus, as per the requirement of Section

17(1)(b) of the Act as a result of conferment of right of

way on the petitioners right, title and interest of the

respondent extinguished and limited and right was

created and declared in favour of the petitioners and

any document conferring any such right is compulsorily

registrable. It is also to be noted that as per the

definition of the term 'immovable property as provided

under Section 2(6) of the Act, the term 'immovable

property' includes rights to ways also: In the light of the

provisions of Section 17(1)(b) of the Act, if the term

'immovable property is considered, it becomes manifest

that a right of way can be created or conferred by a

person over his land in favour of any other person by a

registered document only. In the present case also the

respondent could have conferred upon the petitioners

right of way over his land by executing a registered

document only. In the case in hand although there is no

transfer of ownership in the land over which the right of

way is being claimed by the petitioners and which has

been denied by the respondent but right of way is

included in the definition of immovable property as

defined under Section 2 (6) of the Act. Thus, the

document which creates, declares, assigns, limits or

RSA-680-2008 (O&M) 12

extinguishes a right of way in or over a land is required

to be registered.

10. Effect of non-registration of documents required to be

registered is provided in Section 49 of the Act. It

provides that no document required by Section 17 of the

Act to be registered shall affect any immovable property

comprised therein or shall be received as evidence of

any transaction affecting such property or conferring

such rights unless it is registered. It is well settled legal

position that a document required to be registered, if

unregistered, is not admissible in evidence under

Section 49 of the Act. In the present case, conferment of

right of way by respondent over his other land in favour

of the petitioners but transfer of immovable property as

per the definition of the term as provided under Section

2 (6) and it is not less than creation, declaration and

assignment of property rights in favour of the petitioners

and extinguishing of right, interest and title of the

respondent in his land, it could be effected by a

registered document only and the document in question

being unregistered is not admissible in evidence.”

He thus, submitted that the documents being unregistered

did not create any right, title or interest in the parties and the suit was

liable to be dismissed.

12. I have heard the learned counsel for the parties and gone

through the paper-book.

13. In the humble opinion of this Court, the present appeal

raises following points for consideration:-

I. Whether the agreement dated 13.03.1988 (Ex. P1) by

which a passage was created is required to be

compulsorily registered under the provisions of the

Registration Act, 1908?

II. Whether the suit is barred under the provisions of

Limitation Act 1963?

RSA-680-2008 (O&M) 13

III. Whether the agreement dated 13.03.1988 (Ex. P1) was

acted upon by the parties?

COMPULSORY REGISTRATION ANALYSIS:

14. Before proceeding further, it is essential to examine

Section 17 of the Registration Act, 1908 (hereinafter “the Act”) and the

same is extracted hereunder:-

17. Documents of which registration is

compulsory.—(1) The following documents shall be

registered, if the property to which they relate is situated

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, or the Indian Registration Act,

1871, or the Indian Registration Act, 1877, or this Act

came or comes into force, namely:—

(a) instruments of gift of immovable property;

(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….”

A bare reading of Section 17(1)(b) of the Registration Act, 1908

shows that there are two conditions laid down in the said section that

renders a document to be compulsorily registrable: -

1. Not-testamentary instrument which creates, declares,

assign, limit or extinguishes any right, title or interest.

2. The value has to be rupees 100 and upwards.

15. Further, the Hon’ble Apex Court in Mithilesh Kumar vs

Manohar Lal reported as 1996 (4) SCC 251 held that both the

conditions have to be satisfied under Section 17(1)(b) of the Act for the

document to be compulsorily registerable and the relevant paragraph

from the said judgment is extracted here under:-

“7. …..It is seen that what is material for the purpose of

compulsorily registration under Section 17(1) is that

the document must create, declare, assign, limit or

RSA-680-2008 (O&M) 14

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 should these two conditions be

satisfied before insisting upon instrument for

compulsory registration under Section 17(1)(b) of

the Act….”

15.1 With regard to the first condition, it is essential to answer

the question that whether the agreement by which right to

passage/way has been created, be considered as creating, declaring,

limiting or extinguishing any right title or interest for it to fall within

realm of Section 17 (1)(b) of the Act? The parties in the present case

have relied on two judgements of two different Hon’ble High Courts.

16. The defendants-respondents placed reliance upon the

decision rendered by the Hon’ble Rajasthan High Court in case of

Shree Chand Case (supra) which stated that even if for the sake of

the arguments, the conferment of right of way is a separate right

independent of sale of land, then, such right of way can be conferred

by a registered document only. The Hon’ble Court interpreted Section

17(1)(b) of the Act in the context of right of way whereby it was held

that as a result of conferment of right, title or interest in the land

comprising in the way which was vested in respondent, got

extinguished and limited and a right to use it as a way got created and

declared in the favour of petitioners therein.

16.1. Thus, since there was a conferment of right, document

conferring any such right is compulsorily registerable. It was also noted

that as per the definition of the term ‘immovable property’ as provided

under Section 2(6) of the Act, the term ‘immovable property’ includes

right to ways also. In the light of provisions of Section 17(1)(b) of the

RSA-680-2008 (O&M) 15

Act if the term ‘immovable property’ is considered, it becomes manifest

that a right of way can be created or conferred by a person over his

land in favour of any other person by registered document only.

Although the Hon’ble Court never went into the question of

interpretation of second condition of “value of rupees 100 or more” as

envisaged under Section 17(1)(b) of the Act as the facts of the case

therein did not have a separate agreement for the right of passage and

it was part of the sale deed itself thus, the question of valuation never

came up.

17. The appellant- plaintiff on the other had have referred to

the judgment by the Hon’ble Kerala High Court in Verghese Paul’s

case (supra) which specifically dealt with both the conditions under

Section 17 (1)(b) of the Act.

18. The Court thereby dealt with an agreement between the

plaintiffs and defendants, executed, concerning a passage and

construction of staircase with certain terms and conditions laid down.

The Court dealt with the stipulation that a document creating/

extinguishing rights over immovable property does not require to be

registered in terms of Section 17(1)(b) unless it is shown that the value

of the right, title or interest, created or extinguished is of the value of

Rs.100 and upwards. It was held that value of the right of interest that

has been created or extinguished is to be borne in mind instead of

value of the land while considering whether the document is required

to be registered or not. The Court had put the onus on the defendants

and it was stated that though the written statement did contend that

the document was required to be registered in terms of Section

17(1)(b) of the Act but the value of the right created or extinguished

RSA-680-2008 (O&M) 16

was not specifically pleaded. The nature of the evidence tendered by

the defendants was also with reference to the value of the land over

which such right was created or from which it has been extinguished.

When the defendants did not raise a plea with reference to the value of

the right or interest created or extinguished, the trial Court could not

depend upon the document which only proves the value of the land in

terms of registrability under Section 17(1)(b) of the Act. The Court

further held that the agreement in the question was a clog on the rights

of the parties to use the pathway absolutely in terms of their title to

construct a staircase for mutual benefit and therefore, the right created

or extinguished in terms of the agreement is a restrictor covenant and

hence, incapable of valuation. It cannot attract section 17 of the Act

and thus, the document was not required to be registered and

consequently, to be accepted as an admissible document.

19. It is pertinent to mention here that both the judgments are

not in conflict with each other. The judgment of the Hon’ble Kerala

High Court went a step further to the judgment of Hon’ble Rajasthan

High Court, whereby both the judgments stated that the right of

passage creates and extinguishes the right of parties thus, the first

condition under Section 17(1)(b) is satisfied. It is only the judgment by

Hon’ble Kerala High Court that has dealt with as to which value is to

be taken for the document to be compulsorily registered under Section

17(1)(b) of the Act. The Hon’ble Kerala High Court has placed reliance

on the judgment of the Hon’ble Apex Court in case of Mithilesh

Kumar vs Manohar Lal reported as 1997 (9) SCC 54.

19.1 The Hon’ble Apex Court in Mithilesh Kumar’s case

(supra) considers an agreement whereby any other construction

RSA-680-2008 (O&M) 17

except a Chabutra with specifications was not allowed and other

conditions in relation to it were laid down. The question before the

Court was whether this agreement was a compulsory registrable

document. The Hon’ble Court resorted to the definition of instrument

under Section 2(14) of the Indian Stamp Act, 1899 which states that

every document by which any right or liability is or purports to be

created, transferred, limited, extended, exchange or recorded. The

agreement is thus, an instrument within meaning of Section 2(14) of

the Indian Stamp Act, 1899. The Court was of the opinion that the

respondent had limited its way of clog on the exercise of his right and

enjoyment of the property purchased under the sale deed.

19.2 The Court had agreed that vide the sale deed the

appellant had conveyed to the respondent absolute right, title and

interest in the property but the restrictive clog on the exercise of the

right over his property which the respondent had undertaken was for

the construction of house or wall over the property purchased. Though

the agreement was in relation to the same property which was the

subject matter of the sale deed, the undertaking given by the

respondent was as to the exercise of his right over the property, but it

was incapable of valuation and thus, its value could not be construed

to be ₹100 or more. Under those circumstances the agreement was

not compulsorily registrable under Section 17(1)(b) of the Act. As such,

the Hon’ble Apex Court had held that the rights that can be valued for

Rs.100/- or more would render the document to be considered

compulsorily registrable.

20. Keeping in mind the aforesaid discussion and examining

the agreement in the present case, it’s a tripartite agreement whereby

RSA-680-2008 (O&M) 18

the parties have agreed to leave a passage on their respective lands

to gain access to their fields. This passage is creating right of way for

the parties. The word "create" in legal terminology means to bring into

being to invest with a new title, or to produce. Therefore, every non-

testamentary instrument which means to, or has the effect of

originating some right, title of interest in immovable property will be

governed by the word 'create'. ‘Extinguish’ is a counterpart of the word

'create'. Thus, as the parties conferred right to way to each other, their

rights in their respective properties were limited, restricted and

extinguished simultaneously as certain portion of land was to be used

for the limited purposes of passage only. The parties thus, as a result

of conferment of right of way got extinguished some right, title and

interest whereas a limited right was created and declared in favor of

each other, satisfying the first condition under Section 17(1)(b) of the

Act.

21. Subsequently, the question arises, how is the valuation of

the right to be done? The discussion of Kashinath Bhaskar Datar vs.

Bhaskar Vishweshwar AIR 1952 Supreme Court 153 by the Hon’ble

Apex Court in Mithilesh Kumar’s case (supra) finds relevance here. It

was stated that the right to receive rate of interest mentioned in the

mortgage deed is enforceable and subsequent agreement which limits

or extinguishes the right to receive interest at a particular rate being a

covenant limiting the right, renders the document compulsorily

registrable under section 17(1)(b) of the Act because, the valuation of

limiting the interest is capable of being valued as the interest can be

quantified.

RSA-680-2008 (O&M) 19

22. In the present case, though in the written statement it had

been contended that the document is required to be registered in

terms of Section 17 of the Act, but what is the value of the right created

or extinguished in terms of agreement dated 13.03.1988 (Ex. P1) is

not specifically pleaded therein.

22.1. This Court then turns to the terms and conditions

mentioned in the agreement itself for the valuation of the said right.

The agreement dated 13.03.1988 (Ex. P1) mentions that if any of the

party goes contrary to the above-mentioned passage, then they will be

liable to pay a sum of Rs. 20,000/- as damages and compensation to

each party. From the said wording of the agreement, it can be safely

assumed that violation of the right of passage would lead to

compensation of Rs. 20,000/- to each party which can be taken as the

valuation of the right in the present case. Thus, the agreement dated

13.03.1988 (Ex. P1) was liable to be registered compulsorily under

Section 17(1)(b) of the Act as the valuation of the right is more than

Rs. 100/- in the present case. Consequently, agreement dated

13.03.1988 (Ex. P1) cannot be read into evidence and the defendants

are not bound by it.

ANALYSIS REGARDING LIMITATION:

23. With respect to limitation, this Court finds merit in the

argument of the appellant that there exists no expressed bar as to a

suit under Section 39 of Specific Relief Act, 1963 i.e. a suit for

mandatory injunction cannot be filed if the remedy under Section 6 of

Specific Relief Act has not been availed. It is true that the suit for

mandatory injunction does not find any specific mention in Schedule I

of the Limitation Act and consequently, the residuary clauses have to

RSA-680-2008 (O&M) 20

be resorted to. Thus, placing reliance on the judgment by the Hon’ble

Apex Court in Estate Officer, Haryana Urban Development

Authority v. Nirmala Devi, 2025 INSC 843, whereby it was held that it

is immaterial as to whether Article 58 of the Limitation Act or Article 113

of the Limitation Act would apply, the period of limitation would be 3

years in case of suits for mandatory injunction.

24. Furthermore, this Court in its decision dated 01.04.2019

passed in RSA No.6602 of 2016 titled as Raees Ahmad Versus

Dayawanti, held that although, there is no specific article dealing with

the suits for mandatory injunction in the Schedule attached to the

Limitation Act, 1963, however, in absence thereof, Article 113 which is

a residuary article dealing with the suits for which no period of

limitation is specifically provided elsewhere, the limitation would be 3

years from the date when the right to sue accrued. Thus, applying the

same principles, the limitation period in the present case is taken to be

3 years.

25. The learned Courts below have erred in holding the

present suit to be barred by limitation. The date when cause of action

arose i.e. the tubewell was dug and the trees were planted by the

defendant-respondent, was 03.03.2001 as mentioned in paragraph 9

of the plaint and the date of institution of the suit was 20.04.2001.

Further, from the perusal of Exs. P- 9 & P- 10 i.e. the Khasra Girdawari

of Kharif year 1994 to Rabi year 1999 and Kharif year 1999 to Rabi

year 2001 respectively, the change from ‘Gair mumkin Rasta’ to ‘Gair

mumkin tube well’ entry for the land of the respondent is seen in the

year 1999 to 2000. So even if the cause of action is assumed to have

RSA-680-2008 (O&M) 21

arisen, in year 1999, the present suit would not be barred by limitation

as the limitation for filing suit for mandatory injunction is three years.

ANALYSIS REGARDING THE FURTHERANCE OF THE

AGREEMENT

26. Firstly, the findings of the learned Courts below regarding

the factum of furtherance of the contract are required to be examined,

and thereafter the legal propositions expounded by both sides would

be examined. While admittedly, this Court shall not intervene with the

concurrent findings of the fact recorded by the learned trial Court and

the learned first Appellate Court, however, it is also settled law that

when the findings are perverse, contrary to the records, or on the basis

of misreading of evidence, there is no legal impediment in doing so.

This is also required to be taken into consideration

that Regular Second Appeals in the States of Punjab, Haryana and

Union Territory, Chandigarh, are regulated by Section 41 of the Punjab

Courts Act, 1918, and not by section 100 of the Code of Civil

Procedure, 1908. Reliance in this regard can be placed on a judgment

of Co-ordinate Bench of this Court in Smt. Parkash Devi v. Rajinder

Kumar, 2022 (4) RCR (Civil) 145 and relevant para of which is

reproduced here under:-

"The Regular Second Appeals in the States of

Punjab, Haryana and Union Territory, Chandigarh,

are regulated by Section 41 of the Punjab Courts

Act, 1918, and not by section 100 of the Code of

Civil Procedure, 1908. Reference in this regard can

be made to the judgment of the Five Judge Bench

in Pankajakshi v. Chandrika (2016) 6 SCC 157.

Under Section 41, the High Court is entitled to

reappreciate the evidence if the judgments passed

RSA-680-2008 (O&M) 22

by the Courts below not only reflect misreading of

evidence but also suffer from perversity."

27. While answering the question whether the parties acted in

furtherance of the agreement dated 13.03.1988 (Ex. P1) or not, both

the learned Courts below have held that it was incumbent upon the

parties to have presented the agreement Ex. P1 before the revenue

officials for its implementation. The plaintiff himself in his cross

examination has admitted that he neither presented the agreement

dated 13.03.1988 (Ex. P1) before the Tehsildar/ACIG for

implementation nor did he make any application nor was any mutation

regarding the passage had been entered or sanctioned. Moreover no

‘Tatima’ was prepared by any of the revenue officials regarding the

passage in question nor was any ‘Roznamcha’ prepared that the

passage had been left by the parties. This is indicative of lack of

intention on the part of the parties for the implementation of the said

agreement.

28. The argument by the appellant-plaintiff before this Court

is that the learned Courts below did not properly rely upon revenue

entries including the jamabandies for the years 1988 to 1999 exhibited

as Exs. P-2 to P-6 and P-8 and Khasra Girdawari w.e.f Kharif 1988 till

Rabi 1989 i.e. Exs. P-15 & P-16. This Court admits that as per the law

laid down by the Hon’ble Apex Court in the case of Pratap Singh

dead through LR (supra), the Khasra Girdawaris and jambandies

being record of rights, though rebuttable, carry a presumption of truth

and therefore, the learned Courts below ought to have accepted them

at the face value, consequently, placing the burden on defendants to

rebut the same. A perusal of Exs. P- 9 & P- 10 i.e. the Khasra

RSA-680-2008 (O&M) 23

Girdawari of Kharif year 1994 to Rabbi year 1999 and Kharif year 1999

to Rabbi year 2001 respectively, shows that the change from ‘Gair

mumkin Rasta’ to ‘Gair Mumkin tube well’ entry for the land of

respondent is clearly recorded during the year 1999 to 2000. The

learned Courts below have not given any finding as to how this specific

change came to be recorded. However, in the present case, it also

stands true that there is severe lack of any other evidence to

substantiate the claims of the plaintiffs.

29. Further, the conduct of the appellant does not inspire

confidence in his claims. A perusal of Ex. P-16 i.e. a copy of Khasra

Girdawari from Kharif year 1989 to Rabi year 1994, clearly shows that

in the entry relating to the property of Iqbal Singh, the description ‘Gair

Mumkin Tubewell and Rasta’ was changed to ‘Gair Mumkin Tubewell

House’ w.e.f Kharif Year 1992 i.e. almost 9 years prior to the institution

of the present suit. The subsequent entries also do not find any

mention of the ‘Rasta’ which casts suspicion on the intention of the

appellant-plaintiff to act in furtherance of the agreement dated

13.03.1988 (Ex. P1) as the said agreement was a tripartite agreement

vide which the passage on land of Iqbal Singh was also the only

passage to access the land of appellant in Khasra/Khewat No. 9/6/1.

Yet, the appellant-plaintiff never initiated any legal action against Iqbal

Singh for the breach of the agreement. These facts were further

confirmed in the findings of both the learned Courts below whereby it

was noted that PW1 Prag Dass, father of the appellant had deposed in

his statement that Iqbal Singh had cultivated his land which is the

alleged passage and wheat crop has been standing therein. The

cultivable area of Iqbal Singh is located towards the southern side of

RSA-680-2008 (O&M) 24

the property. Further, even the appellant himself in his cross

examination has admitted that at the spot there exists a water channel

made by Iqbal Singh for irrigating his fields in between Khasra 10/1

and 10//10 and he had also planted the trees adjoining to Khasra

number 10//1 min, within his own property bearing Khasra No.10//10. It

is also pertinent to note here that Iqbal Singh had withdrawn the suit

against the respondents on 16.09.2002 and had himself planted the

trees on the property within his possession and ownership which was

meant for the passage. All the afore-mentioned facts were in the very

knowledge of the appellant but he never acted in furtherance of his

rights.

30. This Court cannot turn a blind eye to the complete lack of

efforts by the appellant to act in furtherance of the agreement dated

13.03.1988 (Ex. P1). Thus, even if the said Khasra Girdawaris and

Jamabandis would have been stood unrebutted before the learned

lower Courts, it is difficult to interfere with the well reasoned findings

recorded by the learned Courts below. In the present case, due to the

lack of other evidence to substantiate the contentions of the appellant-

plaintiff coupled with contradictory depositions from the plaintiff side

while considering the preponderance of the probabilities and the

aforesaid discussion, this Court holds that the answer to the question

whether the parties acted in furtherance of the agreement remains

negative.

RSA-680-2008 (O&M) 25

CONCLUSION

31. In view of the discussion made herein above, we hold that

factually, the parties did not act in furtherance of the agreement dated

13.03.1988 (Ex. P1) and legally, though the suit was well within

limitation, the agreement dated 13.03.1988 (Ex. P1) was liable to be

registered compulsorily under Section 17(1)(b) of the Act as the

valuation of the right is more than Rs. 100/- in the present case thus,

the agreement dated 13.03.1988 (Ex. P1) cannot be read into

evidence and the defendants are not bound by it.

32. In view of the discussion made herein-above, finding no

merit in the present appeal, the same is thus, dismissed.

33. Pending application(s), if any, shall also stand disposed

of.

10.12.2025 (HARKESH MANUJA)

Tejwinder JUDGE

Whether speaking/reasoned Yes/No

Whether Reportable Yes/No