HON'BLE SRI JUSTICE B.N. RAO NALLA
C.R.P. No.5811 OF 2009
09.11.2012
Meenavalli Govindu s/o. late Narayana Murthy and two others
Meenavalli Adilakshmi and another
Counsel for the petitioners: Sri V.S.R. Anjaneyulu
Counsel for Respondents: Sri K.Sarva Bhouma Rao
<GIST:
>HEAD NOTE: 1 2006 (1) ALT 76
ORDER:
This revision is filed by the defendants in O.S. No.365 of 2007 on the file
of the Principal Junior Civil Judge, Machilipatnam, assailing the order dated
18.11.2009
2. The revision petitioners herein are the defendants and the respondents
herein are the plaintiffs in the suit in O.S. No.365 of 2007.
The respondents
filed the suit for mandatory injunction and permanent injunction.
When the
respondents, during the course of trial, sought to mark a document styled as
"Haami Pathram" as exhibit, the revision petitioners took objection and
accordingly they filed the objections before the trial Court stating that the
"Haami Pathram" requires registration under Section 17(b) of Registration Act.
The trial Court after hearing both sides, overruled the objections raised by the
revision petitioners for marking "Haami Pathram" by impugned order dated
18.11.2009 holding that though a right is created, the document is not supported
by consideration of Rs.100/- and upwards, and as such, it does not require
stamp duty/registration.
3. Heard the learned counsel on either side and perused the material made
available on the record.
4. The respondents claimed that they are having irrigation bode "ABCD" and
drawing water since the date of their purchase for cultivating their lands. The
said bode is in existence even prior to 1967.
The vendor of the revision
petitioners had executed "Haami Pathram" to the father of the first plaintiff
and defendant No.1 stating that he would not change the nature and features of
the bode even in the event of sale in future.
The respondents have no other
water source for cultivating their lands except through the said bode. On
20.06.2007, when the revision petitioners ploughed the irrigation bode and as a
result of consequent events, they filed the present suit.
5. It is contended by the revision petitioners that the bode is merged with
the soil long back and the respondents never draw the water through the bode and
they got other source of water to the east of their lands. Apart from that, it
is contended that since the document "Haami Pathram" creates interest in present
and future to draw water from bode, it requires registration under Section 17(b)
of Registration Act, and as such, it is inadmissible in evidence and in
support of their contention, they relied on the decision of this Court in
Natrambaka Krishnaiah v. Nellore Audinarayana.1 It is further contended that
the trial Court erred in coming to the conclusion that the respondents are
entitled to proceed with the trial by marking Haami Pathram as exhibit, though
there are catena of decisions that stamp duty and penalty shall have to be
collected before marking such document.
6. There is no dispute with regard to execution and genuineness of the Haami
Pathram.
The main objection of the revision petitioners is that
since Haami
Pathram creates interest in drawing the water from bode and since the subject
matter of the suit is revolved around the said bode, it requires registration,
and as such, it is inadmissible in evidence.
A Photostat copy of Hami Pathram
has been placed before this Court.
A plain reading of the same goes to show
that the respondents have been drawing the water from the bode prior to
execution of the Haami Pathram and the same was categorically asserted by the
executant, who is vendor of the revision petitioners. The executant assured the
respondents that they would not be obstructed from drawing water from the bode
for cultivating of their lands, in the event of sale. In view of the same, it
can be construed that a right is already created to the respondents for drawing
water from the bode prior to execution of the Haami Pathram. Haami Pathram was
executed only to continue that right. The respondents sought to mark Haami
Pathram only to show a right was already created with regard to drawing water
from the bode in their favour by the vendor of the revision petitioners and they
have been assured to continue that right even in the event of sale. To that
limited extent, the Haami Pathram can be marked as exhibit for collateral
purpose. Further, Haami Pathram is not supported by any consideration. As per
Section 17(b) of the Registration Act, the document is required to be supported
by consideration of the value of one hundred rupees and upwards in immovable
property. The decision of this Court relied on by the revision petitioners in
Natrambaka Krishnaiah v. Nellore Audinarayana (supra) is not applicable to the
facts of the case on hand because in the said decision the
agreement/understanding is that petitioner-plaintiff would be permitted to
formulate the channel from the land of respondent-defendant, and thus it creates
right in favour of the petitioner-plaintiff therein, whereas in the case on
hand, the right was already created and the Haami pathram was executed only to
assure that the respondents shall continue that right in the event of sale by
the executant.
7. In view of the above reasons and in the circumstances, this Court is of
the view that the impugned order does not suffer from any error or irregularity
warranting interference from this revisional Court, and as such, the Civil
Revision Petition is liable to be dismissed.
8. In the result, the Civil Revision Petition is dismissed. No order as to
costs.
_________________
B.N. RAO NALLA, J
Date:09.11.2012
