HIGH COURT OF UTTARAKHAND AT NAINITAL REVIEW APPLICATION NO. 436 OF 2008 IN SECOND APPEAL NO. 385/2001 OLD NO. 993 OF 2000 Bhagat Singh & Others ….. Defendants-Appellants Vs. Mahendra Kumar & Others. ...Plaintiffs-Respondents 30.04.2008 Hon’ble Rajesh Tandon, J. Heard Shri Arvind Vashisht, counsel for the review applicants and Shri Ramji Srivastava, counsel for the respondents. 2. By the present review application, the review applicant has sought the review of the order dated 17.3.2008 on the following grounds:- “1. Because, while deciding the Second Appeal aforesaid an error of law apparent on the face of record took place and therefore the judgment and decree be reviewed and appeal be dismissed. 2. Because the order impugned is improper and it has not decided on question of law framed in Second Appeal and the respondents/applicants have not been heard property on the question of law. 3. Because the appellate court below had considered entire evidence on record and the decree were passed after a detailed analysis of evidence by recording cogent findings. This Hon’ble Court fell into manifest error of law, apparent on the face of record, in remanding the matter to lower appellate court for deciding afresh in the light of observations that the lower appellate court will also make a survey about the land of defendant which they have purchased vide sale deed dated 30.12.1965. 4. Because the second appeal aforesaid was decided by reappraising entire evidence denovo and order shows that court finds evidence deficient which is not permissible at any stage of Second Appeal and the evidence was already considered at the stage of trial and first appeal, therefore, the impugned judgment and decree is against the jurisdiction, therefore liable to be reviewed.” 3. The operative portion of the order dated 17.3.2008 reads as under: “15. Counsel for the appellant has submitted that the appellate court while allowing the appeal has not considered the sale deed dated 30.12.1965 which was executed in favour of the father of the plaintiffs with regard to plot no. 122/1/2. Counsel for the appellant has further submitted that the plaintiffs’ house exists on the entire land of the alleged sale deed and in the boundaries of the aforesaid land, there is no mention in the sale deed about the passage in question. 16. I have perused the sale deed dated 30.12.1965 wherein the boundaries of the plot no. 122/1/2 have been shown as under: East – Road, Rajawali West – House of Anandi Prasad South – Chakrata Road North – Land of Shri Sharda Prasad 17. In Bhandari Construction Co. V. Narayan Gopal Upadhye reported in (2007) 3 SCC 163, it has been held that it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act if the terms of the transaction are reduced to writing. The observation of the Apex Court is quoted below:- “15. When the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act.” 18. In view of the aforesaid, I deem it a fit case to remand the matter to the appellate court. The appellate court shall also make a survey about the land of the defendants which they have purchased vide sale deed dated 30.12.1965 Measuring 0.19 acre by appointing an advocate commissioner and decide the matter expeditiously. 19. Consequently, appeal is allowed and remanded to the appellate court for deciding afresh in the light of the observations made above. No order as to costs.” 4. I have allowed the appeal and remanded the same to the appellate court for deciding afresh and, therefore, there is no occasion to review my own order. Review application, therefore, is liable to be rejected. 5. Consequently, review application is dismissed, No order as to costs. (Rajesh Tandon, J.) 30.04.2008 Avneet HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case S.A. No. 385 of 2001 Old No. 993/2001 Bhagat Singh and others Vs. Mahendra Kumar and others. Approved for reporting Not Approved for reporting Date of Decision:- 17-03-2008. Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 385/2001 OLD NO. 993 OF 2000 1. Bhagat Singh 2. Jagat Singh 3. Jeet Singh 4. Sudhir Singh (Sons of Sri Nathu Singh) Resident of village Selakui Pargana Pachhwadun P.O. Selakui Tehsil Vikas Nagar, Dehradun ….. Defendants-Appellants Vs. 1. Mahendra Kumar 2. Rajendra Kumar 3. Surendra Kumar 4. Anil Kumar (Major sons of Sri Sumer Chand) Resident of village Selakui P.O. Selakui Pargana Pachhuadun Tehsil Vikas Nagar, Dehradun 5. Sunil Kumar 6. Navin Kumar (Minor sons of Sri Sumerchand) Resident of Village Selakui, P.O. Selakui Pargana Pachhuwadun Tehsil Vikas Nagar, District Dehradun Under the guardianship of Mahendra Kumar …Plaintiffs-Respondents 17.03.2008 Hon’ble Rajesh Tandon, J. Heard Shri Ramji Srivastava, counsel for the appellants and Shri Ghanshyam Joshi holding the brief of Shri Arvind Vashistha, counsel for the respondents. 2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 11.5.2000 passed by the Additional District Judge, Dehradun in Civil Appeal No. 97/1995. 3. Second appeal was admitted on the following substantial question of law:- “1. Whether under the facts and circumstances of the case the lower appellate court incorrectly presumed and inferred that as the defendants put barbed wire fencing at point As as mentioned in Amin’s report they cannot be in exclusive possession of the land in dispute while the defendants appellants proved their possession by unrebutted oral and documentary evidence that they are in exclusive possession of the land in dispute? 2. Whether under the facts and circumstance of the case the trial court considered the sale deed dated 30.12.1965 filed by defendants on record executed in favour of Sri Lala Sumer Chand father of the plaintiffs and found that in the North boundary no passage is mentioned as such plaintiffs cannot claim passage over the land in dispute and after considering the oral and documentary evidence the defendants found the defendants’ exclusive possession and rightly dismissed the suit but the lower appellate court could not reverse these findings of facts recorded by trial court and did not consider the said evidence and illegality allowed the appeal and decreed the suit on the basis of perverse and conjectural findings and on irrelevant and unwarranted presumptions and inferences by twisting and misreading the evidence on record. 3. Whether under the facts and circumstances of the case while the plaintiffs did not deny litigation of the defendants-appellants with Gaon Sabha regarding the land in dispute and even did not allege that land different from land in dispute and could not rebut the evidence filed by the defendants Khatauni patta etc. and the plaintiffs could also not prove by any documentary evidence to prove the land in dispute passage to or common passage but the lower appellate court incorrectly and illegally held the land in dispute as common passage only on the basis of inconsistent oral evidence of the witness of the plaintiffs without considering the admissions made by P.W.s in favour of case of defendants and their exclusive possession over the land in dispute while under law the oral evidence cannot over ride the documentary evidence and the documentary evidence will prevail over the oral evidence while the trial court considered the admissions of witnesses of plaintiffs and documentary evidence filed by defendants and rightly dismissed the suit? 4. Briefly stated, a suit being suit no. 457 of 1987 was filed by the plaintiffs for permanent injunction restraining the defendants from raising any construction in the passage details of which have been given in the plaint schedule and further from causing any obstruction in the use of the same by the plaintiffs. According to the plaintiffs, they are the bhumidhars of land of khasra No. 122-1/2 area 0.19 acre situate at village Selakui, Dehradun. There exists the ancestral house of the plaintiffs on the aforesaid property and the plaintiffs are using the 27 feet wide passage situate towards North of the property of the plaintiffs and the defendants no. 1. The passage in question is a common passage and the same is in continuous use of the plaintiffs from the time of their ancestors. It has been alleged that the defendant no. 1 intended to raise construction over the said passage and wanted to clause the same. On 26.11.1987 the defendant no. 1 tried to dig foundation on the said passage and threatened to clause the same. The defendant no. 1 stopped digging foundation only on the intervention of the police. The defendants have no right to raise any construction over the same, hence no right to raise any construction over the same, hence, the suit was filed. 5. A written statement was filed on behalf of the defendant no. 1 denying the plaint allegations. Plaintiffs are not the owners of the property in dispute. It is denied that the land of the plaintiffs bears khasra no. 122/1/2. The existence of passage in dispute towards the North of the properties of the plaintiffs and the defendants has also been denied. The defendants have not encroached the passage in dispute. The map filed by the plaintiffs is wrong. The plaintiffs want to take possession over the property in dispute by illegal means. The suit is bad for non-joinder of necessary parties and the same is liable to be dismissed. 6. On the pleadings of the parties, the trial court has framed the following issues:- “1.Whether the disputed property is a Rasta and plaintiffs are entitled to injunction in its connection ? 2.Whether the suit is undervalued and the court fee paid is insufficient? 3.Whether this Court has jurisdiction to hear the suit? 4.Whether the plaintiff No. 1 has a right to file the suit for and on behalf of his minor brothers, plaintiffs nos. 4 to 6? 5.To what relief, are the plaintiffs entitled to get ? 7. The plaintiffs have examined P.W. 1 Mahendra Kumar, P.W. 2, Mahendra Singh and P.W. 3 Sadhuram. Towards the documentary evidence, the plaintiffs have produced copy of khatauni, copy of police report dated 26.11.1987, affidavit dated 22.11.1987, postal receipt dated 28.11.1987, order dated 20.11.1969 passed by the Tehsildar, Dehradun in suit no. 9/68-69, copy of khatauni mauja Central Hope Town 1378 fasli to 1385 fasli , application dated 24.5.1995 addressed to In-charge, P.S. Mahfiz and copy of khatauni i.e. paper no. 106 ga. 8. The defendants have examined D.W. 1 Bhagat Singh and D.W. 2 Atar Singh. Towards the documentary evidence, the defendants have produced 11 documentary as per list 30 ga, 2 documents as per list 43 ga, 4 documents a per list 58 ga and 2 documents as per list 100 ga. 9. While deciding as to whether the disputed property is a Rasta and plaintiffs are entitled to claim injunction, the trial court has relied upon the statement of P.W. 1 Mahendra Kumar, P.W. 2 Mahendra Singh as well as P.W.3 Sadhu Ram. They have relied upon the plaint map 71-A-1/6 that they have got the Plan with regard to plot in question. The trial court has recorded the finding to the following effect:- ^^izfroknhx.k us viuh leifRr ls lacaf/kr [krkSuh o [kljk 1394 ls 1399 Qlyh izn’kZ , & 1 o izn’kZ , & 2 nkf[ky dh gS ftlesa 122@67 vkSj 122@72 [kljk uEcj ij [kkrsnkj ds :Ik esa izfroknhx.k dk uke vafdr gS vkSj blh izdkj izfroknhx.k [kljk Hkh nkf[ky fd;k x;k gS mlesa 122@67 vkSj 122@72 Hkwfe ij izfroknhx.k dk uke [kkrsnkj ds :Ik esa ntZ gS A izfroknhx.k us vly iV~Vk 12 vkuk ds LVkai ij in’kZ , & 4 nkf[ky fd;k gS ftlds vk/kkj ij fookfnr lEifRr ij vf/kiR; :Ik gksus dk nkok djrs gSaA izfroknhx.k us ys[ki= nks :Ik;s ds Lvkai ij izn’kZ , & 5 nkf[ky fd;k gSA izfroknh us iqfyl fjiksVZ ,oa fpfdRlk fjiksVZ Hkh nkf[ky dh gS tks fjiksVZ izfroknhx.k ds firk uRFkq flag }kjk lqesj pUnz ds f[kykQ vDrwcj 1973 esa fy[kkbZ xbZ gSA ijUrq bUgsa lkfcr ugha fd;k x;kA oknhx.k ds fo}ku vf/koDrk dk rdZ gS dsoy vly iV~Vk vkSj ys[ki= ds vk/kkj ij izfroknhx.k dk dksbZ vf/kdkj@dCtk gksus dk nkok ugha dj ldrs gSa D;ksfd og iathd`r nLrkost ugha gSA bl izdkj oknhx.k vkSj izfroknhx.k }kjk izLrqr reke ekSf[kd ,oa nLrkosth lk{;ksa dks /;ku esa j[krs gq, esjk fopkj gS fd oknhx.k fookfnr lEifRr ij viuk vf/kdkj ,oa vf/kiR; lkfcr djus esa vlQy jgs gSaA** 10. While deciding as to whether the court has the jurisdiction to try the suit, the trial court has recorded the finding that it has the jurisdiction to try the suit. 11. While deciding as to whether the plaintiff No. 1 has a right to file the suit for and on behalf of his minor brothers, plaintiffs nos. 4 to 6, the trial court has recorded the finding that the defendants have failed to prove that the plaintiff no. 1 has no right to file the suit for and on behalf of his minor brothers. Therefore, this issue was decided in favour of the plaintiffs and against the defendants. 12. However, the trial court has dismissed the suit. 13. Aggrieved by the judgment and decree passed by the trial court, the plaintiffs went in appeal. 14. The appellate court has observed that it is a consistent case of the plaintiffs that they are using the passage from the time of their ancestors and they have never claimed the ownership right. The appellate court has allowed the appeal and has recorded the findings as under:- “Therefore, in these circumstances the only burden which lies upon the plaintiffs was to prove that they are using this passage for the time of their ancestors and they had perfected their right of easement. Plaintiffs were not required to prove their title over the land in dispute. A perusal of the evidence on record together with the map prepared by the Amin and specially the circumstances as that a pucca foundation is laid at point ‘A B’ only as shown in the map prepared by the Amin and that the defendants had put their barbed wire fencing only at point ‘A’ which is the entry point to their land, makes it clear that the disputed land is being used a passage by both plaintiffs and defendants and it is not in exclusive possession of the defendants.” 15. Counsel for the appellant has submitted that the appellate court while allowing the appeal has not considered the sale deed dated 30.12.1965 which was executed in favour of the father of the plaintiffs with regard to plot no. 122/1/2. Counsel for the appellant has further submitted that the plaintiffs’ house exists on the entire land of the alleged sale deed and in the boundaries of the aforesaid land, there is no mention in the sale deed about the passage in question. 16. I have perused the sale deed dated 30.12.1965 wherein the boundaries of the plot no. 122/1/2 have been shown as under: East – Road, Rajawali West – House of Anandi Prasad South – Chakrata Road North – Land of Shri Sharda Prasad 17. In Bhandari Construction Co. V. Narayan Gopal Upadhye reported in (2007) 3 SCC 163, it has been held that it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act if the terms of the transaction are reduced to writing. The observation of the Apex Court is quoted below:- “15. When the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Evidence Act.” 18. In view of the aforesaid, I deem it a fit case to remand the matter to the appellate court. The appellate court shall also make a survey about the land of the defendants which they have purchased vide sale deed dated 30.12.1965 Measuring0.19 acre by appointing an advocate commissioner and decide the matter expeditiously. 19. Consequently, appeal is allowed and remanded to the appellate court for deciding afresh in the light of the observations made above. No order as to costs. (Rajesh Tandon, J.) 17.03.2008 Avneet