- (1.) This appeal by special leave arises from the judgment of the learned Single Judge of the Allahabad High court made on 26/10/1979 in Civil Appeal No. 68 of 1971.
(2.) The appellant filed the suit for perpetual injunction restraining the respondent from raising a construction except the Chabutra in the north after leaving a 3 feet passage and from opening windows, doors, ventilators, parnalas towards the north, south and east of the plaintiff's property by raising any construction in the passage. The appellant relies upon the agreement dated 26/6/1964 executed by the respondent as foundation for the aforesaid rights. He also sought alternative relief on the basis thereof that if any construction is made in violation of the said agreement, there shall be given mandatory injunction to demolish the same at the instance of the defendant and to close the doors, windows, ventilators etc. at his cost. The trial court dismissed the suit. But on appeal, the appellate court reversed the decree of the District Munsif, Kashipur of his judgment and decree dated 10/5/1971 and decreed the suit only in respect of Items 1 and 2 holding that the agreement did not require registration. The High court in the secondappeal held that the items require registration compulsorily under Section 17 (l) (b) of the Registration Act. Since the agreement was not registered, the appellant has no right to claim any right on that basis. Accordingly, it a allowed the second appeal, reversed the decree of the appellate court and confirmed that of the trial court. Thus, this appeal by special leave.
(3.) The admitted position is that the respondent had purchased the property of an extent of 1732.6 sq. ft. with 16' wide road on the north side and 30' wide road towards Indira Gandhi School on the west side; shops constructed by the appellant on the south side and open land on the east side; situated at Mohalla Ganj, Kashipur, District Nainital from the appellant and got it registered in the Registrar's office. On the next day, namely, 26/6/1964, he entered into an agreement with a condition envisaged as hereunder: "I have purchased a piece of land only and not the trees and the wall. The said trees and wall belong to Shri Mithlesh Kumar. The following are the terms and conditions in respect of the said trees and the wall: (1 That Lala Mithlesh Kumar will uproot the said trees and demolish the wall within 6 months hereof. (2 Whatever construction is raised by me in the said piece of land, I will not open any door or window or ventilator or rain-water pipe or other pipe for discharge of day-to-day water flow towards the South, North and East. I will not construct any platform or balcony or stairs or corners towards 16 ft. wide passage which Shri Mithlesh Kumar has left in his land in front of my piece of land. (3 That I will raise my boundary wall in the north after leaving a setback of 3 ft. measured from the platform. (4 That if I violate any terms or condition, as aforesaid, Lala Mithlesh Kumar will have a right to enforce the same through process of law at my costs and expenses. ";