RAJESH Tandon, J. - (1.) Heard Shri Rarnji 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. 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 mentioned in Amin's report they cannot be in exclusive possession of the land in dispute while the defendants appellants proved their possession by unrequited oral and documentary evidence that they are in exclusive possession of the land in dispute? 2. Whether under the facts and circumstances 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 witnesses 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 override 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? 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 defendant 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 passagge and wanted to close the same. On 26. 11. 1987 the defendant No. 1 tried to dig foundation on the said passage and threatened to close 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, the suit was filed.
(3.) 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. 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?;