RESERVED HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 1047/2001 Old No. 335 / 95 Satya Prasad ….Appellant Vs. Mangat Ram & Others …..Respondents 14.5.2008 Hon’ble Rajesh Tandon, J. Heard Shri Rajendra Dobhal, counsel for the appellant and Shri Ramji Srivastava, counsel for the respondents. 2. By the present first appeal filed under Section 96 of Code of Civil Procedure, the appellant has prayed for setting aside the judgment dated 12.6.1995 and decree dated 19.6.1995 passed by the District Judge, Tehri Garhwal in O.S. No. 40 of 1993. 3. Briefly stated, a suit was filed by the plaintiff for cancellation of registered sale deed dated 25.6.1986 and possession from the defendant no. 1 over the land to the extent of two nali eight muthi of plots nos. 902 and 903 of khatauni khata no. 59 of village Naicholi, Patti Dhar Akria, Distt. Tehri Garhwal. According to the plaintiff, he alongwith defendant nos. 2 to 4 and the deceased Kalya were the recorded tenure holders of khatauni khata no. 59 situate at village Naicholi in the fasli 1393-1398. The plaintiff and the defendant nos. 2 to 4 were legal heirs of deceased Kalya and on the basis of oral family partition they started living separately. The plaintiff was being out of station in connection with his job and in his absence defendant no. 1 committed trespass on the portion of the plaintiff’s plot. The defendant no. 1 started digging foundation on the said land. On prohibiting the defendant no.1 by the plaintiff, the defendant no. 1 has intimated that he has purchased the land from defendant no. 2 by way of registered sale deed. On questioning about the said sale deed, the defendant no. 2 has stated that she has not sold the said land and the registered sale deed was obtained by playing fraud. The defendant no. 2 has filed a civil suit for cancellation of sale deed and the sale stood canceled at the level of Munsif and that from CJM’S Court the defendant stood convicted against which conviction appeal was filed. Later on, the plaintiff came to know that the defendant no. 1 succeeded in this appeal and defendant nos. 2’s civil suit stood dismissed. It has been stated that the defendant no. 2 has no right to sell the disputed land to the defendant no. 1 and under the garb of that collusive sale deed plaintiff has unauthorisedly been dispossessed from the portion of plots nos. 902 and 903, hence, the present suit has been filed. 4. The defendant no. 1 has filed a written statement denying the plaint averments. It has been stated that the plots in question are in possession of the defendant no. 1 and the plaintiff was fully acquainted with the suit brought by Basanti Devi. The defendant no. 1 has built house and chowk, etc., over two nail and 8 muthi land of plot nos. 902 and 903. The defendant no.2 has executed the sale deed in favour of the defendant no. 1 on 25.6.1986. The plaintiff has instigated Basanti Devi to file a false and vexatious suit for cancellation of the sale deed in question. The plaintiff wanted to transfer the land for consideration when in point of fact the defendant no. 1 was already in possession since December, 1981 and continued in possession in part performance of the contract upon the house and the chowk. The plaintiff was ready and willing to perform his remaining part of the contract. 5. The other defendants did not file the written statement and have not contested the suit, therefore, ex parte proceedings were initiated against them. 6. On the pleadings of the parties, the trial court has framed the following issues:- “1. Whether the sale deed dated 25.6.1986 purporting to have been executed by defendant no. 2 in favour of defendant no. 1 is null and void? If so, its effect? 2. Whether defendant no.1 encroached upon the land of the plaintiff? 3. Whether the defendant no. 1 is liable to eviction from the suit property and whether the plaintiff is entitled to its possession? 4. Whether defendant no. 1 is protected by the doctrine of part performance under Section 53 A of the T.P. Act? 5. Whether the suit is barred by general principles of res judicata? 6. Whether in the alternative, defendant no. 1’s is irrevocable license in making huge investment in making constructions over the disputed land? 7. Whether the suit is time barred? 8. To what relief, if any, is the plaintiff entitled? 7. While deciding as to whether the sale deed dated 25.6.1986 purporting to have been executed by defendant no. 2 in favour of defendant no. 1 is null and void, as to whether the defendant no. 1 encroached upon the land of the plaintiff, as to whether the defendant no. 1 is protected by the doctrine of part performance under Section 53 A of the T.P. Act and further as to whether the suit is barred by general principles of res judicata, the trial court has come to the conclusion that the sale deed in question was valid and the defendant no. 1 has not encroached upon the land of the plaintiff. The trial court has recorded the finding as under:- “On the above ground, I would hold that the sale deed dated 25.6.1986 executed by defendant No. 2 in favour of defendant no. 1 is perfectly valid one and for good consideration. It is not null and void. Defendant No. 1’s title on the disputed land then could not be affected. Also, I would hold that defendant no. 1 took possession of the disputed land with plaintiff’s imprimatur and did not encroached upon it. Further, I would hold that defendant no. 1 is protected by doctrine of part performance under S. 53 A of the T.P. Act. I again hold that the suit is barred by general principles of res judicata. Issue nos. 1, 2, 4 and 5 are answered accordingly against plaintiff.” 8. While deciding as to whether in the alternative, defendant no. 1’s is irrevocable licence in making huge investment in making constructions over the disputed land, the trial court has held that there was implied licence created in defendant’s favour and it was an irrevocable licence under S. 60 of the Easements Act and the defendant no. 1 then in the alternative acquired irrevocable license and was as such not liable to be evicted from the disputed land. 9. While deciding with regard to limitation, the trial court has recorded the finding that the suit is time-barred. The trial court has recorded the finding to the following effect:- “That way then, main thrust of plaintiff congnizable by this court being that of seeking possession in view of suit being brought more than six years after dispossession, when on revenue front his title stood petrified, suit stood time barred.” 10. On the basis of the aforesaid, the trial court has dismissed the suit of the plaintiff. 11. So far as sale deed in favour of the defendants- respondents are concerned, Section 91 of the Indian Evidence Act, 1872 reads as under:- “92. Evidence of terms of contract, grants and other dispositions of property reduced to form of document.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases, in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, which secondary evidence is admissible under the provisions hereinbefore contained.” 92. Section 92 of the Indian Evidence Act, 1872 reads as under:- “92. Exclusion of evidence of oral agreement. - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for purpose of contradicting, varying, adding to, or subtracting from, its terms:” 13. 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 Apex Court has also held that prospective buyer not alleging the applicability of any of the provisos to section 92 of the Indian Evidence Act, 1872, the burden to prove that claim lay on the said prospective buyer. 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.” 14. In view of the aforesaid, I find no infirmity with the judgment and decree passed by the trial court and the same requires no interference. The appeal, therefore, lacks merits and is liable to be dismissed. 15. Consequently, first appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 14.5.2008 Avneet