JUDGMENT : C. L. Soni, J. This appeal under section 100 of the Code of Civil Procedure is at the instance of original defendant NO.1 against whom as well as against respondent No.2 herein, respondent No.1-original plaintiff had filed Regular Civil Suit No. 101 of 1987 to declare that the defendant No.1, his servants and agents have no right or authority to prevent the plaintiff to pass through and utilise the way provided in the estate of defendant No.1 which is adjacent to and on west side of the lands bearing Survey No.49 belonging to the plaintiff. The plaintiff had also prayed for permanent injunction of the like nature. 2. The plaintiff had also prayed for permanent injunction of the like nature. 2. It is the case of the plaintiff that the land bearing survey No.49 of the ownership of the plaintiff was an agricultural land ad-measuring 20 acres 14 gunthas, that the District Development Officer, Himatnagar had by order dated 27.4.1983, permitted use of the land for non agriculture purpose and on the basis of the same, the land was divided into 75 plots, that the land bearing survey No.49 was originally comprising of three survey numbers 51,52 and 53, that adjoining to the land of plaintiff, there exists estate of defendant No.1 on west side, that estate of defendant No.1 was originally belonging to the plaintiff and the same was made after acquiring land of the plaintiff, that acquisition proceedings in respect of the same had taken place in the year 1964, that from non agricultural land bearing survey No.49 of the plaintiff, to go towards the western side National Highway, the plaintiff has to pass through the estate of the defendant No.1 and except this, the plaintiff has got no other way to enter and go out from land bearing survey No.49 belonging to him, that when the land was acquired for the purpose of making estate for defendant No.1, an agreement dated 6.3.1964 was made between the plaintiff, defendant No.1 and the State, where-under special condition was provided approving permanent way of the plaintiff through the estate of defendant No.1, that the way through the estate of defendant No.1 touches the existing way of survey No.49 on north south direction, that the plaintiff has become entitled to use of such way through estate of defendant No.1 without any obstruction from defendant No.1, its servants and agents, that the plaintiff has been in continuous use of such way through the estate of defendant no. 1 till defendant No.1 issued notice dated 29.6.1987 asking the plaintiff to stop using the way through the estate of defendant no.1, that such notice issued by defendant No.1 was arbitrary, illegal and unauthorized and, therefore, the plaintiff was constrained to file the suit. Along with the suit, the plaintiff also filed application under section 80 of the Code of Civil Procedure for the purpose of dispensing with and waiving prior issuance of such notice. 3. The suit of the plaintiff was resisted by the defendant No.1 by filing written statement at Exh. Along with the suit, the plaintiff also filed application under section 80 of the Code of Civil Procedure for the purpose of dispensing with and waiving prior issuance of such notice. 3. The suit of the plaintiff was resisted by the defendant No.1 by filing written statement at Exh. 37 stating therein that the suit was barred because of non service of statutory notice under section 80 of the Code of Civil Procedure, that no agreement was entered into with the plaintiff for the purpose of granting of way as alleged, that as per the rules of defendant No.1, any person who uses right through estate of defendant No.1 has to pay charges, that the plaintiff has no right to use the way to pass through estate of defendant no.1, that the notice issued by the defendant dated 29.6.1987 was legal and valid. 4. On the basis of the pleadings of the parties, the learned trial Judge framed following issues and answered each of them as under : (1) Whether the plaintiff prove that for approaching the national highway abutting on the western direction of survey No.49, they requires to pass from the estate of defendant No.1 and they have no other way to approach the suit survey No.49 situated in the sim of village Motipura Taluka Himatnagar? (2) Whether the plaintiff prove that by agreement dated 6.3.1964 with the defendant No.1, also they are entitled to use the suit way and the defendants have no right to restrain them? (2A) Whether the suit is barred by law of limitation? (2B) Whether their suit is not tenable without statutory notice u/s. 80 of C.P.C.? (2C) Whether this suit is bad for non-joinder or mis-joinder of necessary parties? (2D) Whether the defendants are entitled to get compensatory costs from the plaintiffs? If yes, what amount? (3) Whether the plffs. are entitled to declaration sought? (4) Whether the plaintiffs are entitled to permanent injunction as prayed for? (5) What order and decree? Answers : (1) In the negative. (2) In the negative. (2A) In the negative. (2B) In the negative. (2C) In the negative. (2D) In the negative. (3) In the negative. (4) In the negative. (5) As per final order.” 5. (4) Whether the plaintiffs are entitled to permanent injunction as prayed for? (5) What order and decree? Answers : (1) In the negative. (2) In the negative. (2A) In the negative. (2B) In the negative. (2C) In the negative. (2D) In the negative. (3) In the negative. (4) In the negative. (5) As per final order.” 5. On the basis of appreciation of the evidence adduced by the parties, the learned trial Judge came to the conclusion that the plaintiff cannot be said to have acquired any right of way upon the estate of the defendant No.1 as easement by way of grant under the document. The learned trial Judge further came to the conclusion that if the agreement dated 6.3.64 which was not required to be registered like the sale deed or document creating any express grant, then, such could be termed and treated as licence and the plaintiff could have used the way through the estate of defendant No.1 on the basis of such licence till final acquisition of land for defendant No.1 because such licence was revocable one. The learned trial Judge thus came to the conclusion that whatever rights the plaintiff had by virtue of agreement, those rights were extinguished and enjoyment of right through the estate of defendant No.1 since was not for more than 30 years, the plaintiff could not claim to have acquired right of easement by prescription. Learned trial Judge on the basis of such conclusions, dismissed the suit of the plaintiff by judgment and decree dated 30th April, 1994. 6. The plaintiff thereafter filed Regular Civil Appeal No. 34 of 1994 in the Court of the learned Assistant Judge Sabarkantha at Himatnagar. 7. The learned appellate Judge framed following points for determination which came to be answered as under: (1) Whether the learned trial court has erred in dismissing the suit of the plaintiff on the point that the agreement is not registered? (2) Whether the learned trial court has erred in not accepting the say of the plaintiffs that they have got right of way to the land of defendant No.1? (3) Whether the learned trial Court has erred in saying that the right of the plaintiffs has come to an end on the event of acquisition of the land for the defendant No.1? (4) Whether the judgment and decree of the learned trial Court require any interference? (3) Whether the learned trial Court has erred in saying that the right of the plaintiffs has come to an end on the event of acquisition of the land for the defendant No.1? (4) Whether the judgment and decree of the learned trial Court require any interference? (5) What order? Answers (1) In the affirmative. (2) In the affirmative. (3) In the affirmative. (4) In the affirmative. (5) As per final order. 8. The learned appellate Judge, on independent appreciation of the evidence on record, came to the conclusion that the right of the plaintiff to pass through the estate of defendant No.1 under agreement dated 6.3.64 was available to him. Learned Appellate Judge observed that the agreement though unregistered could be read in evidence and on the basis of such agreement, right of the plaintiff was recognised by the Reference Court in acquisition proceedings. Learned appellate Judge has further observed that the defendant No.1 and the Government Officer both were parties to the agreement and even if such agreement was not registered one, since right of way was consented by the Government, registration of such agreement was not required. Learned appellate Judge has also considered map produced at Exh. 71 pertaining to survey No.41 where from it was found that there was no way in survey No.56 which was adjacent to survey No.49 on its western side. Learned Judge further found from the map Exh.69 of defendant No.1 in respect of the estate and found that there was already a road mentioned in the map sanctioned pursuant to non agriculture permission going from east to west which touches to the National Highway and comes in survey No. 49 of the plaintiff. Learned appellate Judge thus came to the conclusion that there has been a way through the estate of defendant No.1 touching the survey No.49 of the plaintiff. Learned appellate Judge also referred to the observations made by the reference court in respect of the acquisition proceedings of the land of plaintiff and found that the reference court in its judgment has clearly observed that in view of the contract at Exh. 35 (agreement Exh. 65) dated 6.3.64, it was necessary for defendant No.1 to give 12 ft. road for approach to the claimant's land on the east i.e. land of the plaintiff. 35 (agreement Exh. 65) dated 6.3.64, it was necessary for defendant No.1 to give 12 ft. road for approach to the claimant's land on the east i.e. land of the plaintiff. The learned appellate Judge ultimately observed that defendant No.1 and Government both having once agreed to give permanent right of way to the plaintiff through estate of defendant No.1, it was not proper on the part of defendant No.1 and Government to back out from such agreement. On the basis of the above conclusion, learned appellate Judge allowed the appeal of the plaintiff and declared that the plaintiff has right of way through the estate of defendant no.1 to approach the land bearing survey No.49 of the plaintiff and also granted permanent injunction restraining the defendant No.1, its servants and agents etc. from obstructing the plaintiff from passing through the said estate of defendant No.1. It is this judgment and decree of the lower appellate Court which is under challenge before this Court in this appeal. 9. This appeal was admitted by order dated 17.11.2003 on the following substantial questions of law : “[1] That whether on facts and circumstances of the case the lower Appellate Court erred in finding that the trial court erred in dismissing the suit of the plaintiff on the ground that the agreement in question was not registered? [2] That whether on facts and circumstances of the case the lower Appellate Court has erred in not appreciating that in the present case requisite statutory notice under section 55(A) of Gujarat Industrial Development Act, 1962 was not given by the plaintiff to the defendant No.1 Corporation and hence also the suit was not maintainable? [3] That whether on facts and circumstances of the case the lower Appellate Court has materially erred in not appreciating that the suit was barred by limitation under Section 55 of the Gujarat Industrial Development Act, 1962? [4] That whether on facts and circumstances of the case the lower Appellate Court has erred in misreading and in misconstruing the provisions of Sections 13, 14, 15 and 18 and other provisions of the Indian Easement Act, 1982?” 10. I have heard learned advocates for the parties. 11. Learned advocate for the appellant Shri Bhatt submitted that the learned Judge has committed serious error in interfering with the judgment and decree passed by the learned trial Judge by holding that the agreement Exh. I have heard learned advocates for the parties. 11. Learned advocate for the appellant Shri Bhatt submitted that the learned Judge has committed serious error in interfering with the judgment and decree passed by the learned trial Judge by holding that the agreement Exh. 65 was not required to be registered. He submitted that the respondent acquired right of way under the agreement Exh. 65 and such agreement since created a right on the estate of defendant No.1 which would amount to conferring right in the immovable property, therefore, agreement Exh. 65 was compulsorily required to be registered and in absence of registration of such agreement, the plaintiff could not have been said to have acquired any right of way through the estate of defendant No.1. He submitted that in fact, the suit of the plaintiff for enforcement of such right on the basis of unregistered agreement was not at all maintainable. Mr. Bhatt submitted that the agreement was in fact required to be registered under section 17(1) (b) of the Act and even if such agreement was taken to have not for the first time created any right in favour of the plaintiff, then also, such agreement by virtue of State Amendment in section 17 was required to be registered because agreement Exh. 65 was instrument which purported or operated to have effect of contract or transfer of immovable property between the parties. He submitted that the amendment has been inserted in sub section (1) of section 17 itself by introducing clause (aa) in the said provisions. As per his submission, if the plaintiff has to get his right recognised on the basis of such agreement, such was amounting to enforcement of agreement and such agreement could have been enforced in the court of law only if the same was registered one. He therefore submitted that the learned trial Judge had rightly dismissed the suit on the ground that the agreement at Exh. 65 was not registered. 12. Mr. He therefore submitted that the learned trial Judge had rightly dismissed the suit on the ground that the agreement at Exh. 65 was not registered. 12. Mr. Bhatt submitted that in fact if the agreement was not to be taken as agreement for transfer of property like sale deed, or conferring of any right in the immovable property as held by the learned appellate Judge, then, in such a situation, it was just kind of license in favour of the plaintiff and the plaintiff had right to have access through the estate of the defendant No.1 on the basis of such license till the license stood revoked automatically on finalisation of acquisition proceedings. He submitted that after the land acquisition proceedings were finalized, no right of the plaintiff survives to pass through the estate of defendant No.1 and therefore also, learned appellate Judge has committed grave error in allowing the appeal. He submitted that the learned appellate Judge has committed grave error in holding that the land vested with the defendant no.1 under section 16 of the Land Acquisition Act was with right of passage and right of way of the plaintiff and such right has been culminated in ultimate award under section 11 of the Act. Mr. Bhatt submitted that on finalisation of the land acquisition proceedings, all existing rights of the land owner would stand extinguished and land would absolutely vest in the Government and, therefore, learned appellate Judge has committed gross error in coming to the conclusion that by virtue of section 16, right of the plaintiff still survived. Learned Advocate Mr. Bhatt further submitted that the suit of the plaintiff was otherwise also not maintainable because of non service of notice under section 55A of the Gujarat Industrial Development Act, 1962. He submitted that the notice under section 55A of the said Act was mandatory and non service of such statutory notice before filing of the suit was fatal to the maintainability of the suit itself and any decree passed on the basis of such suit by the learned appellate Judge could not stand scrutiny of law. He, therefore, submitted that on the above substantial questions of law this court may allow the appeal of the appellant. 13. In reply, learned advocate Mr. He, therefore, submitted that on the above substantial questions of law this court may allow the appeal of the appellant. 13. In reply, learned advocate Mr. Hriday C. Buch for the respondent No.1 has submitted that the estate of defendant No.1 was formed from part of the land of the plaintiff on acquisition of land under the Land Acquisition Act. He submitted that even before acquisition of land, plaintiff had his way through the land which had subsequently become estate of defendant No.1. Learned Advocate Mr. Buch submitted that the right had already existed and if the plaintiff had continued to enjoy such right of way from the said land, simply because there was subsequent agreement between the parties at the time of taking the possession for the purpose of acquisition would not be a ground to say that by such agreement, for the first time, the plaintiff was conferred right of way through the estate of defendant No.1. Learned Advocate Mr. Buch submitted that there is no dispute about the fact that the plaintiff has been continuously enjoying the right of way through estate of defendant No.1 before and after 6.3.1964, the day on which the agreement was entered into between the parties for the purpose of handing over possession of the land acquired with specific condition agreed upon by defendant No.1 and respondent No.2 to permit the plaintiff to use the way from the estate of defendant No.1 on permanent basis. Mr. Buch submitted that right from 1964 till 1987, for about more than 23 years, the plaintiff has been enjoying such right of way which was validly recognised and it was only after 23 years, defendant No.1 suddenly issued notice asking the plaintiff not to use the right of way through the estate of defendant No.1. He submitted that the right of way having been validly recognised by the Courts below could not be just taken away only on the ground that the agreement was not registered. He submitted that in the facts of the case and considering the right recognised through the agreement, the agreement was not at all required to be registered. Learned Advocate Mr. Buch submitted that the agreement dated 6.3.1964 could not be said to be covered by section 17(1) (aa) or (b) as suggested by the learned advocate Mr. Bhatt. He submitted that in the facts of the case and considering the right recognised through the agreement, the agreement was not at all required to be registered. Learned Advocate Mr. Buch submitted that the agreement dated 6.3.1964 could not be said to be covered by section 17(1) (aa) or (b) as suggested by the learned advocate Mr. Bhatt. He further submitted that by agreement dated 6.3.64, neither any further right was created or conferred upon the plaintiff nor any interest in the immovable property transferred as regards right of way in favour of the plaintiff by virtue of such agreement. He submitted that if such was not the case, there was no necessity to get the agreement Exh. 65 registered and, therefore, the learned appellate Judge has rightly come to the conclusion that the non-registration of such agreement would not take away the right of the plaintiff to have access through the estate of defendant No.1. 14. Learned advocate Mr. Buch submitted that the appellate Judge has rightly observed that the land acquisition proceedings were finalised subject to existing right of the plaintiff to have passage of way through the estate of defendant No.1. He submitted that when such right was recognised even by the reference court and when the reference court had recognised in its order and observed that as per contract Exh. 35 (Agreement Exh. 65), the parties were to keep 12 ft. road for approaching to the land of the plaintiff, such could be an order passed by the competent court recognising right of the plaintiff and in such circumstances, there was no necessity to have registration of the agreement on the basis of which the plaintiff claimed his right. Learned Advocate Mr. Buch further submitted that the learned appellate Judge has also rightly observed that the very defendants and the State Government both were parties to the agreement and have consciously agreed to give permanent right of way through estate of defendant No.1 at the time of acquiring lands of the plaintiff and, therefore, it was not proper on their part now to back out from such agreement and assurance. He, thus, submitted that the appellate court having found clear right of way in favour of the plaintiff, such right could not be allowed to be defeated on such technical ground especially when in the facts of the case and on the nature of right available to the plaintiff, the agreement was not required to be registered. 15. As regards non-service of statutory notice under section 55A of the Gujarat Industrial Development Act, 1962, Mr. Buch submitted that the appellant cannot be permitted to raise such plea at this stage for the first time in this appeal. He submitted that no such objection was raised before the courts below by the present appellant and therefore, such being pure question of fact and having not been raised by the appellant before the courts below, it is not open for the appellant to raise it for the first time before this court, therefore, this court may not allow the appellant to raise such question about the notice under section 55A of the said Act. 16. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with the record and proceedings available to the court, it appears that the plaintiff has been uninterruptedly enjoying right of way through the estate of defendant no.1 before and after the agreement of 1964 and continued to enjoy such right of way till 1987. The fact that for such long period, defendant No.1 did not raise any objection for use of such right by the plaintiff was a strong ground in favour of the plaintiff to believe that there was conscious decision and agreement on the part of defendant No.1 and the State Government to give permanent right of way to the plaintiff even after the acquisition proceedings were to be concluded and vesting of land in the State Government and subsequently in the acquiring body-the defendant No.1. It is not in dispute that the estate was earlier part of the land of the plaintiff. It has also come on record by way of evidence that the way emerging from the estate meet the way to survey No.49 of the plaintiff. It is not in dispute that the estate was earlier part of the land of the plaintiff. It has also come on record by way of evidence that the way emerging from the estate meet the way to survey No.49 of the plaintiff. There is also no dispute about the fact that the plaintiff has his approach to the national highway through the estate of defendant No.1 and has his access through it to reach to his land bearing Survey No.49. If the right of way was already available to the plaintiff and if the plaintiff had volunteered to execute agreement giving away possession of the land for the purpose of establishment of estate of defendant No.1 and if at the relevant time, defendant No.1 and State Authority had consciously agreed to continue such right of plaintiff to have passage and way through the estate of defendant No.1 on permanent basis, it cannot be said that the plaintiff was for the first time being conferred or granted any new right nor could it be said that by agreement at Exh. 65, any new right was being created in favour of the plaintiff. It appears that the agreement dated 6.3.64 was just to recognise the right of way of the plaintiff which he was otherwise having through the land of estate of defendant No.1. Therefore, in my view, such agreement was not at all required to be registered. 17. Mr. Bhatt however submitted that by virtue of such amendment in the Registration Act, such agreement was required to be registered. He pointed out insertion of clause (aa) in section 17(1) which reads as under : “In section 17,- (i) in sub section (1), after clause (a), insert the following clause namely (aa) instruments which purport or operates to effect any contract for transfer of any immovable property.” 18. Above provision is in respect of the instrument which purport or operate to effect any contract for transfer of any immovable property. In my view, the agreement in question could not be read as instrument which purport or operate to effect any contract for transfer of immovable property. 19. There is another facet of the dispute as regards extinguishment of right of way of the plaintiff. Mr. In my view, the agreement in question could not be read as instrument which purport or operate to effect any contract for transfer of immovable property. 19. There is another facet of the dispute as regards extinguishment of right of way of the plaintiff. Mr. Bhatt submitted that with the conclusion of the proceedings under the Land Acquisition Act, even if there was any such right with the plaintiff to have access through the estate of defendant No.1, such right had extinguished with the finalisation of the acquisition proceedings. As per his submission, no existing right on the land would continue after the land would vest in the State Government under the provisions of the Land Acquisition Act. Though the Court is not called upon to decide such question of law because such is not the substantial question of law formulated for consideration of this Court, still however, since it has been raised by the learned advocate Mr. Bhatt, the court would make attempt to deal with such question also. The facts of this case would go to show that the initiation of land acquisition proceedings was by the State Government and it is always by the State Government for acquiring body. There cannot be any dispute about the fact that on acquisition of particular land,it would vest in the State Government free from encumbrances. However, if the fact of recognising existing right and continuation thereof after acquisition was not there, the things would have been different. Agreement between the parties could not be bypassed to find out what would be legal consequences of vesting of land on acquisition of such land under the Land Acquisition Act. Here in this case, defendant No.1 for whose benefit the land was acquired and who was to establish estate on such land was a party to the agreement and had consciously agreed to recognise and continue right of way of the plaintiff on permanent basis, therefore, such right would not end just on vesting of the land with the State Government after acquisition but such right would be subject to establishment of estate where from the plaintiff would continue to enjoy his right as agreed by defendant No.1. In my view, defendant No.1 having agreed to allow the plaintiff to continue to enjoy such right on permanent basis, and the plaintiff having enjoyed such right for more than 23 years even after the acquisition, the defendant No.1 cannot take any such unreasonable stand. There is no dispute about the fact that the estate was already established and even after establishment thereof, the plaintiff has been continuously enjoying such right through the estate of defendant no.1 for the last more than 20 years. 20. Therefore, in view of the above facts, in my view, even if the land had vested in the State Government by virtue of section 16, and even if provisions of section 16 of the Land Acquisition Act were not properly construed by the learned appellate Judge, the plaintiff's right was not lost by vesting of the land in the State Government under the provisions of the Land Acquisition Act. 21. As regards third question of limitation, as could be found by the learned trial Judge, the suit was filed within one month from the date of notice issued by the appellant. Therefore, from the date from which the cause of action has arisen, the suit was filed by the plaintiff within the period of limitation. Therefore, in my view, such question could not be said to be substantial question of law for consideration of this Court. 22. Then comes the question about non service of statutory notice before filing of the suit. I find that such plea was not raised by the appellant before the trial court as no such objection was raised by defendant no.1 nor was it there before the lower appellate court, therefore, such objection cannot be permitted to be raised before this court for the first time. Even apart from this, Section 55A reads as under : “55.A Notice of suit against Corporation:- (1) No person commence any suit against the Corporation or against any officer or servant of the Corporation or any person acting under the orders of the Corporation for anything done or purporting to have been done in pursuance of this Act, without giving to the Corporation, officer or servant or person, as the case may be, two months' previous notice in writing of the intended suit and of the cause thereof, not after six months from the date of the act complained of. (2) In the case of any such suit for damages, if tender of sufficient amount shall have been made before the action was brought, the plaintiff shall not recover more than the amounts so tendered and shall pay all costs incurred by the defendant after such tender.” Section 55A deals with the issuance of notice where any person is to file the suit against the corporation in respect of any action or order passed by the corporation, then, such notice was required to be given. In this case, what was claimed by the plaintiff in the suit was his right to use the estate of defendant No.1 to have access or passage through such estate. In my view, therefore, in such kind of suit, no such prior notice was required. 23. So far as the last question as to whether the learned appellate Judge has misread or misconstrued the provisions of section 13, 14,15 and 18 of the Indian Easement Act is concerned, it is required to be noted that the right of way of eastment is also recognised for transferor. In my view, in the facts of the case, section 14, 15, 18 have no application. However, so far as section 13 is concerned, it also provides that where immovable property passes by operation of law, the persons from whom and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. Section 13 itself provides that transferor can have right of easement which is necessary for enjoyment of his other property. The Court below has as a matter of fact, found that the plaintiff had and continued to have necessity of passing through the estate of defendant No.1 for reaching to his own land which the plaintiff possessed at the time of acquisition of his land which was recognised and agreed to be continued by defendant No.1 and approved by Defendant No.2.Therefore, even if the property of the plaintiff passed in favour of defendant No.1 by operation of law, the plaintiff as a transferor of such property had his right of way and continued the same for the enjoyment of his own property which was not to be severed just on the ground that the right of way recognised by defendant No.1 was only till acquisition. In light of the above, I do not find that the learned appellate Judge has committed any error in interpreting the provisions of the Easement Act. 24. For the above said reasons, I am of the view and I hold that neither the agreement was required to be registered nor right of the plaintiff was extinguished at any time. The appeal is, therefore, required to be dismissed and the same is dismissed. Appeal dismissed.