HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 144 OF 2007 Swami Keshav Swaroop Charitable Trust (Regd). ………….Appellant/Plaintiff. Versus Sri Ganga Vishan & Ors. ….Respondents/Defendants. Dated: 11.6.2008 Hon’ble Rajesh Tandon, J. Heard Sri Pankaj Miglani, counsel for the appellant and none for the respondents. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 22.3.2007 passed by the District Judge, Haridwar in Civil Appeal No. 87 of 2006, whereby the appeal has been allowed. 3. Present Second Appeal has been admitted on the following substantial question of law: “As to whether the land shown by letters AB EF in Naksha Najri is a joint passage, which was the part of the land shown by letters ABCD by registered sale deed dated 28.11.1998 Paper No. 77A/1, and therefore, the finding to the contrary recorded by the appellate Court is liable to be vitiated by an error of law.” 4. Briefly stated, a suit was filed by the plaintiff / appellant being Civil Suit No. 50 of 2000 Swami Keshav 2 Swaroop Vs. Ganga Kishan and others praying to the following effect:- “¼v½ ;g fd fMdzh vkKkid O;kns’k cgd oknh cjf[kykQ izfroknh la[;k &1 o izfroknh la[;k 3 bl vej dh ikfjr dh tk;s fd izfroknh la0 1 izfroknh la0 3 ekuuh; U;k;ky; }kjk fu/kkZfjr vof/k ds vUnj vUnj xyh ,]ch]bZ],Q ij mlds }kjk djs x;s fuekZ.k o yksgs ds xsV dks gVkdj xyh dks iwoZor dj nsa] ,slk u djus ij oknh U;k;ky; dh ,tsUlh }kjk ,slk djk ldsA ¼c½ ;g fd fMdzh LFkk;h fu"ks/kkKk cgd oknh cjf[kykQ izfroknh la[;k & 11 o izfroknh la[;k 3 bl vej dh ikfjr dh tk;s fd izfroknh la[;k 1 izfroknh la[;k 3 Lo;a ;k vius ,tsUV dk;ZdrkZ ;k deZpkjh }kjk xyh ,]ch]bZ],Q esa fuekZ.k dj ;k fdlh Hkh vU; izdkj dh :dkoV u djs rFkk oknh laLFkk ds lnL;ksa rFkk mlds Hkou esa Bgjs O;fDr;ksa dks xyh ,]ch]bZ],Q dks iz;ksx djus esa :dkoV u Mkys u Myok;sA ¼l½ ;g fd okn dk [kpkZ oknh dks izfroknh la[;k & 1 o izfroknh la[;k 3 ls fnyk;k tk;sA ¼n½ ;g fd vU; dksbZ vuqrks"k tks ekU; U;k;ky; okn ds gkykr esa mfpr le>s oknh ds gd esa ikfjr fd;k tkosA 5. According to the plaint averments, the plaintiff / appellant is a society registered under the Societies Registration Act and Sri Satpal Singh is the Secretary of the plaintiff and Ved Prakash is the Manger. They have been authorised to file the suit by resolution dated 20.2.2000. The plaintiff purchased a land in Khasra No. 912, 913 through a registered sale deed dated 16.12.1994 for the sale consideration of Rs. 60,000/-. There is a 15 feet wide common passage situated in the west of the property in dispute due to which the plaintiff became its co- owner. After the land was purchased, the plaintiff got the site 3 plan sanctioned by the authority concerned and then raised the construction over the said plot of land and got the doors and windows constructed towards the said 15 feet wide common passage in the west & hence is using the same as its co-owner. It was further submitted that in the month of December, 1999 defendant no. 1 collected building material over the aforesaid 15 feet wide common passage and its information was sent to the trustees of the plaintiff who upon coming to know about it, requested the defendant no. 1 not to obstruct the way by raising structures in it but defendant no. 1 and 3 have no right over the common passage and hence, the construction / obstruction over the common passage by defendants no. 1 and 3 is totally wrong and illegal. 6. The defendants have filed written statement denying the plaint averments. 7. In paragraph no. 2 of the additional pleas of the written statement filed by the defendant no. 1, it has been stated that the owner of the plot is the wife of Smt. Vimla Gupta/defendant no. 3. Further in paragraph 8 of the additional pleas, it has been stated that by way of registered sale deed dated 12.12.1998, it has been stated that the said land has been purchased and that has been taken into a separate plot of 1100 sq. feet and has started constructions. 8. On the pleadings of the parties, the trial Court has framed the following issues: “1& D;k okn xzLr lEifRr ,d la;qDr jkLrk gS ftldk oknh lg Lokeh ,oa vf/kdkjh gS\ 4 2& D;k okn i= ds lkFk layXu uD’kk utjh esa v{kj , ch bZ ,Q ls fn[kk;h xbZ lEifRr ,d la;qDr jkLrk gS\ 3& okn i= ds lkFk layXu uD’k utjh esa v{kj , ch bZ ,Q ls iznf’kZr izfroknh ua0 3 }kjk [kjhn dh xbZ futh lEifRr gS\ 4& orZeku okn focU/ku ,oa ekSu Lohd`fr ds fl)kUr ls ckf/kr gS\ 5& lriky ,oa osn izdk’k dks oknh laLFkk dh vksj ls okn nk;j djus dk vf/kdkj izkIr gS\ 6& D;k oknh fdlh vuqrks"k dks izkIr djus dk vf/kdkjh gS\ 9. Towards the documentary evidence, the plaintiff has filed copy of the sale deed Paper No. 36A1, affidavit of Satpal Paper No. 54A2, affidavit of Pradeep Kumar Paper No. 55A2, affidavit of the Ramesh Chand Paper No. 56A2 along with enclosures sale deed Paper No. 56A2/3, 56A2/4, sale deed Paper No. 7A1 to 7A1/11, copy of the sale deed Paper No. 77A1/1 to 77A1/14, Map Paper N. 8A1, Memorandum of Negotiation Paper No. 9A1, Registration Certificate Paper No. 11C1, copy of the complaint Paper No. 12C1, copy of the order of the City Magistrate Paper No. 13 C1, copy of the Registration Certificate and Rules. 10. Towards the documentary evidence, the defendants have filed Receipt of the Hardwar Development Authority Paper No. 71C1 to 72A1 and copy of the sale deed Paper No. 7gA1/1 to 76A1/16. Towards the oral evidence, Ganga Bishan Gupta, Hansraj, and Gangadhar Pandey have been examined as D.W.1, D.W.2 and D.W.3 respectively. 5 11. While deciding the issue no. 1 and 2 as to whether the property in dispute is a joint path, of which the plaintiff is the co-owner and is entitled to use the same and further as to whether the property shown by letters A B E F in the enclosed map is a joint passage, the trial Court has recorded a finding after relying upon various documents that no documentary evidence has been filed by the defendant which can rebut the contents of the plaint. It has further been recorded that the property in the western side of the property of the plaintiff ABCD is a common passage and the plaintiff has been using the same since long. The aforesaid issues have been decreed in favour of the plaintiff and against the defendants. 12. While deciding the issue no. 3 as to whether the property shown by letters ABEF in the enclosed map is the private property of defendant no. 3, the trial Court has relied upon the sale deed Paper No. 76A1 and the sale deed dated 28.11.1998 Paper No. 77A1, where description of the property has been given. Further reliance has been placed sale deed Paper No. 36A1, which also shows the description of the property. Relying upon the aforesaid documents, the trial Court has decided this issue in favour of the plaintiff and against the defendants. 13. While deciding the issue no. 4 as to whether the suit is barred by principle of acquiescence or estoppel, the trial Court has recorded the finding that no evidence has come out, which can establish that the suit is barred by principle of acquiescence or estoppel. Thus, the issue has been decided accordingly. 6 14. While deciding the issue no. 5 as to whether the Satpal and Ved Prakash are empowered to file the suit, the trial Court has recorded the finding that no evidence or document has been filed by the defendants in order to establish that Sri Satpal and Ved Prakash have no right to file the suit, thus, this issue has been decided in favour of the plaintiff and against the defendants. 15. While deciding the issue no. 6 with regard to relief, the trial Court has recorded a finding that the plaintiff is entitled to get the desired relief. 16. The trial Court has decreed the suit of the plaintiff on 11.7.2006. 17. Aggrieved by the said judgment and decree, the defendants preferred an appeal being Civil Appeal No. 87 of 2006. The appellate Court by a short and cryptic judgment, allowed the appeal. 18. It is well settled that the appellate Court is required to consider the entire evidence available on record before reversing the judgment and decree of the trial Court. 19. In H.K.N. Swami Vs. Irshad Basith (2005) 10 SCC 243, the Apex Court has observed as under: “3. The first appeal has to be decided on facts as well s on law. In the first appeal parties have the right to be heard both on questions of law ass also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on 7 law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title. The order of the High Court is cryptic and the same is without assigning any reason.” 20. Relying upon H.K.N. Swami Vs. Irshad Basith (2005) 10 SCC 243 in Chinthamani Ammal Vs. Nandgopal Gounder and another (2007) 4 SCC 163, the Apex Court has observed as under: “22. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243, this Court opined that the appellate court is required to address all the issues and determine the appeal upon assignment of cogent reasons.” 21. As will appear from the aforesaid, the Apex Court has observed that the appellate Court being a court of fact has to look into the facts as well as legal issues of the case. 22. In view of the aforesaid, the matter is sent back to the appellate Court for deciding the same afresh after taking into consideration the entire evidence available on the record. However, during the pendency of the appeal before the appellate Court, both the parties shall maintain status quo and third party interest shall not be made. 23. Consequently, Second Appeal is allowed. No order as to costs. (Rajesh Tandon, J.) 11.6.2008 Rathour 8