IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 329 of 2001 Dinesh Chandra (deceased) & others ….Defendants/appellants. Versus Suresh Chandra …..Plaintiff/Respondent Ms. Indu Sharma, Advocate for the defendants/appellants. Mr. Sudhir Singh, Advocate for the plaintiff/respondent. Hon’ble Sudhanshu Dhulia, J. (oral) This second appeal was dismissed for non-prosecution by a learned Single Judge of this Court vide order dated 30.6.2010. Now a restoration application along with a delay condonation application has been filed by the defendant/appellants praying that the order dated 30.6.2010 may be recalled and the matter may be restored to its original number. Reasons shown for condoning the delay in filing the restoration application seem to be bona fide. Delay is condoned. For the reasons stated in the restoration application, order dated 30.6.2010 is recalled and second appeal is restored to its original number. Heard Ms. Indu Sharma, Advocate for the defendants/appellants as well as Mr. Sudhir Singh, Advocate for the plaintiff/respondent. This is defendants’ second appeal. The suit of the plaintiff for permanent injunction was decreed by the Additional Munsif, Haldwani, district Nainital vide order dated 21.05.1992. The first appeal filed by the defendants was dismissed vide order dated 12.10.1003 and the decree was upheld by the first appellate court. This second appeal was admitted on the following substantial questions of law :- “1. Whether there being a great divergence regarding existence of the rasta, as stated in the agreement and that stated in the plaint map, the suit of the plaintiff was at all maintainable? The decree passed by the court below is at all sustainable? 2. Whether in view of the fact, that the alleged agreement dated 5th June, 1989, was apparently executed without any 2 consideration, the same was void document ? The decree passed by the court below relying upon the aforesaid document is at all sound in law ?” Heard learned counsel for the parties on the first substantial question of law which is whether there being a great divergence regarding existence of the “rasta”, as stated in the agreement and that stated in the plaint map, the suit of the plaintiff was at all maintainable and the decree passed by the court below is at all sustainable. In suit for permanent injunction filed by the plaintiff/respondent there are two evidence which have gone in its favour which weighed heavily on the trial court, while granting decree in favour of the plaintiff/respondent. Firstly, a registered agreement between the plaintiff and defendant dated 5.6.1989 in which it had been agreed between the parties that there is a “rasta”/passage between “Khet” of the defendant and therefore the presumption of law would always be that it is a valid agreement unless it is proved otherwise and the second evidence which has gone in favour of the plaintiff/respondent is commissioner’s report. The commissioner’s report though does not state that the “rasta” on which the right has been claimed by the plaintiff/respondent is eight feet wide but categorically states that it is two and a half feet at some place and four feet at other place. But the positive finding is that a passage/“rasta” does exist and it is being used as “rasta”. On the basis of these two findings the suit of the plaintiff/respondent was decreed vide order dated 21.5.1992. In appeal the order dated 21.5.1992 was upheld primarily on the aforesaid two findings which went in favour of the plaintiff/respondent. As far as the divergence of use regarding the “rasta” is concerned, the same has no material bearing to the case inasmuch as it has not been determined as to when the eight feet road actually become four feet or two and a half feet. The fact of the matter is that it has come out in the commissioner’s report that a “rasta” does exist. Merely because the “rasta” at some point is two and a half feet and four feet and not eight feet would not entirely dilute the case of the 3 plaintiff/respondent. Therefore, this substantial question of law goes against the defendants/appellants and in favour of the plaintiff/respondent. The second substantial question of law on which the appeal was admitted is whether in view of the fact, that the alleged agreement dated 5th June, 1989, was apparently executed without any consideration, the same was void document, and the decree passed by the court below relying upon the aforesaid document is at all sound in law. It is wholly irrelevant that there should be a consideration in that agreement. This agreement is not in the nature of contract. It is simply an agreement or undertaking/promise made by the defendant that he will permit the plaintiff/respondent to use the “rasta” and will not restrict the plaintiff/respondent on this “rasta”. Therefore, the submission of the counsel for the defendant/appellant that the agreement dated 5th June, 1989 was executed without any consideration is wholly irrelevant. It is an important peace of evidence which has rightly been relied upon by the plaintiff/respondent. This substantial question of law, therefore, goes against the defendant/appellant and in favour of the plaintiff/respondent. For the foregoing reasons, there is no merit in the present second appeal and the same is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 23.9.2010 Avneet