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HIGH COURT OF UTTARAKHAND AT NAINITAL

Second Appeal No.75 of 2013

Jagdeep Kumar Agarwal and others ….....Appellants

Versus

Smt. Asha Negi and others ….….Respondents

Present:-

Mr. K.H. Gupta, Rafat Munir Ali and Ms. Irum Zeba,

Advocates for the appellants.

Mr. T.A. Khan, Sr. Advocate assisted by Mr. Mohd. Shafy,

Advocate for the respondents.

Hon’ble Rakesh Thapliyal, J.

The instant second appeal has been preferred

by the plaintiffs/appellants against the judgment and

decree passed by the learned Additional District Judge,

Kotdwar, Garhwal, dated 22.04.2013/25.04.2013 in Civil

Appeal No.4 of 2010, Smt. Asha Negi and another vs.

Jagdeep Kumar Aggarwal and others.

2. Brief facts of the case are that a suit was filed

by the appellants bearing O.S. No.45 of 2005 praying for

demolition of a wall raised by the defendants marked as

‘X’ in the plaint map as well as for restraining the

defendants and their agents from creating any hindrance

on the plaintiffs in using the common path. In the suit,

written statement was filed by the defendants by

submitting that the path in question is not a common

passage and the plaintiffs have no right to use the same.

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3. After exchange of pleadings, the trial court

framed Nine issues and decide all issues in favour of the

plaintiffs/ appellants except Issue No.8 which relates to

an unregistered agreement dated 26.06.2001 and decreed

the suit on 20.10.2010.

4. Being aggrieved with the judgment and decree

passed by the trial court, Civil Appeal No.04 of 2010 was

filed by the defendants which was allowed by the 1st

Appellate Court and the judgment and decree passed by

the trial court was set aside.

5. Now, being aggrieved with the judgment and

decree passed by the 1^st Appellate Court dated

22.04.2013, the instant second appeal has been preferred

which was admitted on 22.03.2014 with the following

substantial question of law:-

“Whether the lower appellate court has reversed

the findings of the trial court as to the right of

plaintiffs to use 10 feet passage on a totally

wrong appreciation of evidence.”

6. Mr. K.H. Gupta, learned counsel for the

appellants argued that one Jagesh executed a registered

sale deed in favour of the plaintiffs on 26.06.2001,

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wherein, there is a reference of common passage which

was obstructed by the defendant by raising a wall.

Consequently, plaintiffs/appellants instituted a suit for

demolition of wall as well as to restrain the defendant

and his agent from creating any obstacle and hindrance

in the way of plaintiff in using the common passage. He

submits that brother of Jagesh, namely Kailash also

executed a sale deed in favour of the defendants on

15.07.1998 wherein also there is reference of the same

common passage with further rider that the defendant

will neither encroach nor raise any construction on the

said common passage. He submits that despite the fact

that there is reference of common passage in both the

sale deeds, the defendants raised a wall in order to

restrain the plaintiffs from using this common passage.

He submits that the trial court rightly decreed the suit

and while decreeing the suit, all the issues as framed by

the trial court were decided in favour of plaintiffs except

one which relates to an unregistered agreement. He

argued that the first appellate court on wrong premise

allowed the appeal based on the statement of Kailash

who, in fact, supports the case of the plaintiffs in his

written statement though orally he supports the

defendants and the first appellate court committed

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manifest illegality while allowing the appeal on the basis

of contradictory stand of Kailash.

7. On the other side, Mr. T.A. Khan, Sr. Adovcate

who appears for the defendants-respondents submits

that, in fact, the first appellate court allowed the appeal

on the basis of the settlement dated 31.07.1993 arrived at

the time of land distribution, and a site plan was also

prepared, wherein, the share of all were determined. He

submits that after settlement both Jagesh and Kailash

sold their respective share. The site p