Judgment:
ORDER
C.V. Ramulu, J.
1. The Civil Revision Petition is filed under Article 227 of the Constitution of India being aggrieved by an Order dated 3-12-2004 made in I.A. No. 1053 of 2004 in O.S. No. 1030 of 1999 on the file of the learned Principal Junior Civil Judge, Nellore.
2. The petitioner is the plaintiff. He filed the suit in O.S. No. 1030 of 1999 initially for permanent injunction restraining the respondent-defendant from interfering with the suit schedule channel. Thereafter, it was amended to that of seeking mandatory injunction for restoration of the channel. The present I.A. No. 1053 of 2004 was filed by the respondent-defendant under Order XVIII Rule 4 read with Section 151 of the Code of Civil Procedure to determine the admissibility of understanding/agreement dt. 26-10-1987 marked as Ex.A-6 stating that it is hit by the provisions of the Stamp Act as well as the Registration Act; therefore, it cannot be admitted in evidence. The petitioner-plaintiff resisted the same on the ground that the issue was already discussed and was confirmed by the Presiding Officer earlier and further, the document is only a letter of undertaking and it does not require stamp duty and penalty. After hearing both the parties, the trial Court came to the conclusion that Ex.A-6 understanding/agreement is with regard to watering and electricity charges and Avula Venkata Seshaiah agreed to give the channel in his land in which the said Seshaiah and the plaintiff would have rights to water their lands. Therefore, Ex.A-6 created interest in favour of the plaintiff and thus it requires to be sufficiently stamped and registered as per the Registration Act. Since it is insufficiently stamped and not registered, it cannot be admitted in evidence and, therefore, the same was excluded from evidence. Challenging the same, the present revision is filed.
3. Learned counsel for the petitioner strenuously contended that the Court below had committed an illegality and irregularity in excluding Ex.A-6 from admitting in evidence. The Court below failed to see that Ex.A-6 does not create any right/interest in any immovable property; therefore, Section 17(1)(b) of the Registration Act has no application. Ex.A-6 is only a Memorandum of Agreement regarding usage of water and payment of electricity charges. The observation made by the Court below that Ex.A-6 appears to be a sale and, therefore, it is registrable is misconceived. Further, even if the document is not sufficiently stamped, the Court could have permitted the petitioner-plaintiff to impound the document. Further, the Court below failed to consider the Judgment reported in State v. Navjot Sandhu @ Afshan Guru 2003 (1) DT (SC) 490 in proper perspective. Even otherwise, the Court below could have considered this aspect at the time of deciding the suit itself and not in the I.A.
4. Whereas, learned counsel for the respondent strenuously contended that the Court below has rightly construed Ex.A-6 having created interest in the immovable property (channel), it requires to be registered. After the closure of the evidence of either side, this I.A. was filed to determine as to the admissibility of Ex.A-6 in evidence. Therefore, the Court below has not committed any error in disposing of the I.A. at that stage.
5. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and also perused the impugned Order and other material made available on record.
6. A Xerox copy of Ex.A-6 (Telugu) has been placed before this Court. A plain reading of the same shows that it is an agreement as to creation of a channel in the land of the respondent/defendant for the purpose of irrigating the lands of the petitioner/plaintiff. The lands of the defendant are located in between the lands of the plaintiff. The understanding under Ex.A-6 is that the petitioner-plaintiff would be permitted to formulate a channel from the lands of the respondent-defendant to enable him to irrigate his land on the other side of the lands of the defendant, belonging to the petitioner-plaintiff. Thus, undoubtedly, it creates an interest in the immovable property and, therefore, it requires to be sufficiently stamped and registered under Section 17(1)(b) of the Registration Act. The contention of the learned counsel for the petitioner that it does not create any interest in the immovable property is without any substance. Once Ex.A-6 creates a channel through the lands of the defendant for irrigating the lands of the petitioner-plaintiff on the other side of the land of the defendant, the channel is nothing but formation of a canal in the lands of the defendant. Looking from any angle, it cannot be said that the nature of the agreement does not create any interest in the immovable property.
7. Further, the argument of the learned counsel for the petitioner is that since Ex.A-6 is pressed into service for collateral purpose of proving the possession, the question of its inadmissibility does not arise, whether it is registered or not. At this stage, it may be appropriate to scan through the prayer in the plaint to decide whether Ex.A-6, which is sought to be marked, is admitted for collateral purpose. The amended prayer in the plaint reads as under:
The plaintiff, therefore, prays for a decree and judgment
(a) granting permanent injunction restraining the defendant and his men and agents from interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property and from closing point the irrigation channel marked in red colour In the plaint rough sketch and prevent from irrigating the schedule mentioned property;
(b) directing the defendant and his men to restore the plaint plan marked BC channel into its original position by grant of mandatory injunction. Otherwise, the same will be done through the process of the Court.
8. A plain reading of the said prayer would indicate that the suit is filed for restoration of the channel through the fields of the respondent-defendant and also to prevent the defendant from interfering with the usage of the channel. Therefore, the contention of the learned counsel for the petitioner that Ex.A-6 can be admitted in evidence for collateral purpose of proving possession is untenable. Learned counsel for the petitioner also relied upon a reported Judgment in A. Kishore @ Kantha Rao v. G. Srinivasulu 2004 (2) An.W.R. 1 (A.P.) : 2004 (3) ALD 817 (D.B.) wherein it was held that even an unregistered sale deed can be taken into consideration in terms of proviso to Section 49 of the Registration Act for the purpose of establishing possession and nature of possession. In the said case, the decision in Satish Chand Makhan v. Govardhan Das Byas : AIR1984SC143 was also referred to, wherein it was held that even an unregistered sale deed can be taken into consideration in terms of the proviso to Section 49 of the Registration Act for the purpose of establishing possession and nature of possession. The terms of the lease would be primary purpose and the possession and nature of possession would be the collateral purpose. There cannot be any dispute as to the proposition laid down in the said Judgment. Admittedly, in the case on hand, the suit is for a decree of restoration of channel in the lands of the defendant and also injunction not to interfere with the said channel. Therefore, the very nature of the prayer in the suit is to enforce the terms of agreement and not merely for the possession or injunction. Therefore, the said decision is of no help to the petitioner and the marking and admission of Ex.A-6 cannot be said to be only for a collateral purpose. It is for the principal purpose of seeking the mandatory injunction for restoration of the channel i.e. enforcing the rights of the parties as per the terms of Ex.A-6. Therefore, unless and until Ex. A-6 is sufficiently stamped and registered, it cannot be admitted in evidence. A document, which is compulsorily registrable and not registered and, therefore, not admissble as evidence of a transaction affecting immovable property, may be admitted as evidence for collateral purpose. The collateral purpose referred to in proviso to Section 49 of the Registration Act would be any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property (See V.H. Deshpande v. R.D. Deshpande AIR 1942 Bombay 268). In this case, under Ex.A-6 a right is created in the immovable property; therefore, it cannot be said that it is pressed into service for collateral purpose of mere injunction. Further, the nature of the prayer in the suit, as noticed above, is seeking declaration of right over the channel through the lands of the defendant. If a document is purporting to create an interest in the immovable property, it is inadmissible in evidence for want of registration. None of the terms of Ex.A-6 can be permitted to be proved by admitting the document in evidence. Ex.A-6 is not being used for collateral purpose as contended by the learned counsel for the petitioner.
9. For all the above reasons, I am of the considered opinion that the Court below has not committed any error in passing the impugned Order calling for interference of this Court under Article 227 of the Constitution of India. Accordingly, the Civil Revision Petition is dismissed. No order as to costs.