The defendant has all along taken the plea that the
properties of the plaintiffs are illegal structures. This is his
contention raised in the written statement. What the plaintiffs now
seek is the legalization of this illegal structure by getting the stamp
of approval from the Court permitting him the laying of electric
and water pipes through this private portion of the defendants.
The statement of the defendant recorded under Order X of the
Code clearly states that the plaintiffs have access to their houses
through the house of their father; it is not as if they have no other
means to approach their houses. Even otherwise in view of the
definition of `easement‟ as contained in Section 4 of the said Act,
easementary right would not include permission to lay down
electric fittings or water pipes in the portion of the another. This is
not the ambit and scope of the definition of `easement‟ as
contained under Section 4 of the said Act.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on: 10
th November, 2010
SUKHBIR SINGH & ORS. ………..Appellants
Versus
RAM SINGH & ORS. ……….Respondents
1. The present appeal has impugned the judgment and decree
dated 04.10.2001 which had endorsed the finding of the Trial Judge
dated 01.09.1987 whereby the suit of the plaintiff, Sh. Sukhbir
Singh, had been dismissed.
2. The plaintiffs (three in number) had filed a suit against the
defendants for permanent injunction. Plaintiff no. 1 was stated to
be the owner in possession of the property no.WZ-820-A, plaintiff
no.2 was the owner in possession of the property no.WZ- 820-B and
plaintiff no.3 was the owner in possession of the property no. 820-C
located on the slopes of the pahar (rock) in the abadi of village
Naraina Delhi. The said properties had been depicted in green,
blue and yellow colour in the plan attached with the plaint.
3. The only approach to their properties was through this
street; they have an unrestricted right to use the street which had
been depicted in red colour in the site plan. This is a public street.
In the alternate, if it was found that this street is not public street,
the plaintiffs are co-owners in use and in possession of this
easementary right/right of way as this is the only mode of access to
their houses. Defendants have adopted an aggressive attitude and
have threatened to prevent the plaintiffs from using this street; the
plaintiffs are prevented from laying their pipes for the purposes of
municipal water and electricity. In spite of requests, defendants
have not heeded. Suit was accordingly filed.
4. The defendants have disputed the claim of the plaintiffs. It is
submitted that the approach to the houses of the plaintiffs is
through house no. 820 which is the house of their father. The
defendant no. 1 is the owner and in possession of the properties
bearing nos. 815, 816 and 819 and the alleged passage is the
compound of the said properties and forms a part and parcel of the
same. The plaintiffs have no right over the same. It is pointed that
the houses of the plaintiffs i.e house no. 820-A, 820-B and 820-C
are extensions of the original house i.e. house no. 820 which
belongs to their father. Besides the fact that the aforenoted
constructions are illegal, the plaintiffs have no right of access to
their properties through this passage shown in red colour in the
site plan. It is a part of the courtyard of the properties of the
defendant on which he has exclusive right and title.
5. Trial Judge had framed nine issues. Six witnesses were
examined on behalf of the plaintiffs and seven witnesses were
examined on behalf of the defendants. Their oral testimony was
gone into in an in-depth detail. The site plain Ex.PW-6/1 had been
proved through the version of PW-6. Trial Judge held that the
plaintiffs have no right over this passage depicted in red colour in
as Ex.PW6/1; this is the property of the defendants. Suit of the
plaintiff was dismissed.
6. Impugned judgment had endorsed this finding.
7. This is a second appeal. On 01.09.2008, the appeal was
admitted and the following substantial questions of law were
formulated which inter alia reads as follows:
“(1) Whether the findings of the learned ADJ and that
of the learned Civil Judge, without reasoned issue-wise
appraisal and discussion of the evidence on record, can
be a „JUDGMENT‟ required by order 41 Rule 31 of CPC?
If not, are they not liable to be set aside as perverse per
(2001) 4 SCC 756 (Madhurkar and Others Vs. Sangram
and Others), 2001 (3) PLR 594 (SC): (Madan Mohan Lal
V/s. UOI), 2001 (2) RCR 605 (Dhanna Lal V/s. Smt.
Kalavatibai) and a catena of judicial pronouncements?
(2) Whether in the undisputed circumstance of the
only approach to the suit houses of the Appellants
situated on the upper slope of the „Pahar‟ (ridge) in
Village Naraina being an Urban Area of the West Zone of
Municipal Corporation of Delhi (and before that of the
West Delhi Municipal Committee), through the „Street‟
does not qualify to be held to be a „PUBLIC STREET‟
under Section 298 of the Delhi Municipal Corporation Act
1957? If so, then are the contrary findings of the Trial
and the First Appellate Court legally sustainable OR deny
the „Righty of Way‟ and/or “Easement of Necessity” of its
user by Appellants and take Municipal Water supply line
and also electricity supply by cables, through it to their
houses?
(3) Can the clear admission dated 22.03.1982 of the
Respondent under Order 10 CPC and of dated
18.10.1985 as per interim injunction order of the learned
Trial Court, and written compromise dated 10.01.1982 of
the Respondent in favour of the Appellants regarding the
matter in controversy in the Suit be held to be “not made
with free-will” by incorrect appreciation and misreading
thereof by the Courts vitiating their finding on the point
in controversy?”
8. On behalf of the appellant, it is stated that the findings in the
impugned judgment are a perversity. The judgment has merely
reproduced the pleadings of the parties and the depositions
recorded before the Trial Judge without giving any reasoning as to
how he had arrived at the aforenoted conclusion. Attention has
been drawn to the judgment of the Trial Judge dated 1.09.1987. It
is pointed out that the Trial Judge, except in para 26 and thereafter
in para 31, has not given any discussion as to how he has arrived at
the conclusion. Under Order 41 Rule 31 of the Code of Civil
Procedure (hereinafter referred to as the „Code‟) such a cursory
approach does not qualify as a `judgment‟. Counsel for the
appellant has placed reliance upon a judgment of the Supreme
Court reported in JT 1993 1 (SC) 213 titled as Rameshwar Dayal
Vs. Banda through his LRs to support his submission that under the
Code, the word „judgment” as defined in Sub-section 2(9) means
“the statement given by the Judge on the grounds of a decree or
order”; the court is bound to give a concise statement of the case,
the points of determination, the decision thereon and the reasons
for such a decision; this is lacking in this judgment of the Trial
Court. It is pointed out that the First Appellate Court in fact on
internal page 7 of the judgment has itself agreed that the judgment
of the lower court is not elucidative but since the conclusion drawn
is correct, no interference is called for. It is pointed out that such
an approach is erroneous. Learned counsel for the appellant has
placed reliance upon a judgment of the Supreme Court reported in
2001 3 (SCC) 179 Santosh Hazari Vs. Puushottam Tiwari to
support his submission that where the first Appellate Court has in
a cryptic matter reversed the finding of the Trial Judge, the matter
is liable to be remanded back. It is pointed out that in this case,
the Supreme Court had reiterated that a first appeal is a valuable
right of the parties and the judgment of the first Appellate Court
must reflect its conscious application of mind on all issues arising
thereupon along with the contentions put forth and pressed by the
parties; this is absent in the instant case. In this view of the
matter, the impugned judgment is clearly a perversity and is liable
to be interfered with. The compromise dated 10.1.1982 Ex.PW 2/2
duly effected before the police and signed by all the parties has
also been cursorily ignored. Attention has also been drawn to the
statement of the defendant recorded under Order X of the Code on
22.3.1985. It is pointed out that the admissions made by the
respondent in this statement have been ignored in the impugned
judgment; if this admission of the defendant is read, relief would
automatically flow to the plaintiff as the defendant has admitted
that the disputed passage shown was the common access way for
all the houses including the houses of the plaintiffs. It is pointed
out that the plaintiffs have been using this passage since long
which is the only route to access their houses; this is evident from
the site plan; plaintiffs/appellants have acquired easementary right
of necessity/right of way. Attention has been drawn to Section 4 of
the Indian Easement Act, 1882 (hereinafter referred to as the „said
Act‟), as also to the provisions of Section 14 of the said Act to
support this submission. Reliance has been placed upon JT (2004)
(10) SC 228 Justiniano Antao and Ors. Vs. Smt. Bernadette B. RSA
Pereira. This was a suit where the plaintiff claimed easementary
rights by way of prescription. Learned counsel for the appellant
has conceded that he is not pressing his claim for easement by way
of prescription and the finding of the Trial Judge as also the first
Appellate Court that the appellant has failed to show that he was
using this common passage since the last 20 years has not been
made out and the appellant does not seek to challenge this finding.
It is however submitted that in view of the ratio of the aforenoted
judgment, if the plaintiff is able to demonstrate and show before
this court that he has no other mode of access to his house except
through that of the property of the defendants, easement of
necessity necessarily arises. Reliance has also been placed upon
AIR 1987 Calcutta 97 Smt.Pravabati Roy and Anr. Vs. Dwijendra
Lal Sengupta and Anr. It is pointed out that the law on easement of
necessity has been detailed in this judgment which necessarily
encompasses that for the effective user of the property in its
ordinary way, the right of easement of necessity is recognized. The
ratio of the aforestated judgment which applies to the facts of the
instant case entitles the plaintiff to the relief of injunction as
claimed by him as the plaintiff has admittedly no other way to
approach his property. Reliance has also been placed upon AIR
2005 Delhi 319 Shri Rajiv Srivastava Vs. Sanjiv Tuli and Anr. It is
pointed out that an admission made by a party under Order X of
the Code is sufficient for a decree to follow under Order 12 Rule 6
of the Code as the said provision speaks of admissions made not
only in the pleadings of the parties but even “otherwise”; the word
“otherwise” has been interpreted to include the admissions made
under Order X of the Code
9. Arguments have been countered by the learned counsel for
the respondents. It is pointed out that the statement of the
respondent under Order X of the Code does not qualify as an
admission. It is submitted that the alleged compromise Ex. PW 2/2
was never voluntary and this has been the stand of the defendants‟
right from the inception. The defendants had been taken to the
police station and without their knowledge were made to sign on
blank papers. Such a compromise not being voluntary was rightly
held by both the courts below to be not binding upon the parties.
It is submitted that the judgments of the two courts below which
are concurrent findings of fact have correctly held that the houses
of the plaintiffs i.e. House nos. 820-A, 820-B and 820-C are
extensions of the original house which was the house of their
father i.e. house no.820. They are illegal and unauthorized. By
way of this suit, the plaintiffs are intending to get their illegal
structures legalized; even otherwise these properties have
admittedly sprung into construction only about three years ago.
No easementary right has accrued in favaour of the plaintiffs either
by way of prescription or by necessity as they have access to these
houses through the house of their father house no. i.e. 820.
10. This is a second appellate court. The substantial questions of
law have been reproduced herein above.
11. Under Order 41 Rule 31 of the Code, the judgment of the
Appellate Court must state the following:-
(a) the points for determination;
(b) the decisions thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled;
and shall at the time that it is pronounced by
signed and dated by the Judge or by the Judges
concurring therein.
12. The impugned judgment runs into eight pages and the
discussion and the findings emanate as follows:-
“7. I have heard Ld. Counsel for both the parties and
perused the material available on record.
8. Ld. Counsel for the appellant has submitted that
Ld. Lower Court has erred in holding that the land in
dispute is a Private Street of the defendants/respondents.
Plaintiff/Appellant has averred that the land of the street
is of Village Naraina as the Village is an Urban Village.
The land belongs to Delhi Municipal Corporation and
under Delhi Development Act of Street vest in the public
and the plaintiff/appellant are the residents of the
villages for a right to pass through that street. He has
further submitted that Ld. Lower Court has erred that
defendants/respondents entered into compromise Ex.
PW2/2 voluntarily out of their free-well and have
admitted the claim of the appellants which operates as an
admission and also an agreement between the parties.
But Ld. Lower Court has totally ignored this fact that
respondents dishonestly resiled from the agreement. Ld.
counsel for the appellant has further submitted that
Lower court has totally ignored that the appellants are
living on “Pahar” and they have a right to abut to their
houses and they have a right by way of easement and
necessity. On these grounds Ld. counsel for the
appellant has submitted that the judgment of the Lower
Court deserves to be set aside.
On the other hand, Ld. counsel for the respondent
has submitted that the Ld. Lower Court has given well
reasoned judgment considering all the facts &
circumstances of the case and the evidence on record
which needs no interference.
The appellants have claimed the right to the
disputed street by way of three separate means.
Firstly, they are saying that the land under-neath
the street belongs to MCD. Therefore, respondent has no
right to interfere in the use of the street by the appellant.
There is no record on the file by way of which it can be
said that this is a public street. Hence the contention of
the Ld. counsel for the appellant that the disputed street
is a public street cannot be accepted.
Secondly, the counsel for the appellant has argued
that the plaintiff/appellants have right by way of
easement and right of prescription in the said street for
ingress and outrages and also have discharging the rain
and waste water and other material of their houses. For
claiming the right of the easement and right of
prescription it must be shown that the said street is in
use by the appellants openly, peacefully, continuously
and without objection from anybody in a hostile manner
for a period of more than 20 years. It has come on the
record that the appellants have constructed their houses
4/5 years ago. The appellants have placed on record the
house tax receipts for the year 1979-80 onwards. The
suit was filed in 1981 which means the houses were
constructed recently. No evidence that the street in
question is being used for more than 20 years have
brought on record. Rather in the cross examination of
PW1 he has admitted that house no. 820-A, 820-B, 820-C
were not in use prior to 2/3 years. Rather they were in
dilapidated condition. Taking this fact into consideration
the contention raised by the Ld. counsel for the appellant
that they have been approaching the houses 820-A, 820-B
& 820-C through the street in dispute which was used for
more than 20 years, cannot be accepted.
Thirdly, the use of the street cannot be said to be
peaceful uninterrupted and without any restrictions.
Had it been so there was no necessity to resolve the
dispute between the parties by a compromise on
10.1.1982. It has been admitted by the appellants that
during the pendency of the suit the defendant/respondent
became violent and aggressive. However, no evidence
has been brought on record that for a long 20 years the
enjoyment of the street was open, peaceful, continuous
and without objection of anybody. Therefore, there is no
force in the contention of Ld. counsel for the appellant
that the appellants have acquired the right of easement
and right of prescription in the said street for egress or
ingress for their houses.
Lastly, coming to the compromise dated 10.1.1982
it would not be out of place to mention that the said
agreement took place during the pendency of the suit
which was filed on 30.04.1981 by the appellants. Hence
any agreement or compromise to be made between the
parties should have been made before the court or the
same settled outside the court and the same could be
informed to the court but it has not happened in the
present case. The alleged compromise took place in the
police station. It has also been stated by DW1 that police
took him to the police post alongwith his sons and threats
were given to him and he was also slapped which means
the said agreement, if at all, was not made with free will.
Therefore, I do not find any substance in the contention
of the Ld. counsel for the appellant. However, I agree
with the contention of Ld. counsel for the appellant that
the judgment passed by the Ld. Lower Court is not very
well elucidative judgment. But since conclusion drawn
by the Ld. Lower Court is correct. There is no need to
interfere in the judgment.
It is pertinent to mention here that earlier an
appeal was filed by the appellants against the judgment
and decree passed by the Lower Court which was
allowed and the case was remanded back to the Lower
Court for giving specific findings in respect of additional
issue no. 8-A. Ld. Lower Court vide order dated
24.1.1990 again decided the issue no.8-A in favour of
defendant and against the plaintiff. I have gone through
the order dated 24.1.1990. Ld. Lower Court has
discussed the entire evidence concerning this issue and
has rightly reached the conclusion that the compromise
deed Ex. PW 2/2 is not a voluntary compromise deed and
it has no binding effect from the defts. As discussed
above, during the pendency of the suit DW 1 was taken to
PP Naraina by the police. He was made to sit there and
was asked to put his thumb impression on the paper and
was also slapped shows that the compromise deed, if any,
was not free from coercion and undue influence. Hence,
the same has no bindings upon the defendants.
Therefore, issue no. 8-A was decided by the Lower Court
vide its order dated 24-01-1990 is also correct and needs
no interference.
There is no merit in the appeal. All the issues have
been correctly decided by the Ld. Lower court and the
judgment and decree of the lower court needs no
interference. The same is dismissed.”
13. Perusal of the judgment shows that in the preceding
paragraphs i.e. between paras 1 to 5, the case of the parties has
been set out i.e. their respective pleadings; the issues have been
detailed; the witnesses examined on behalf of the plaintiff and the
defendant have also been detailed. The findings are contained in
para 7 onwards. The contention of the parties i.e. of both the
appellant and the respondents has been dealt with in detail. The
judgment, in fact, has set out the contentions in a point-wise form.
The alleged compromise entered into between the parties has been
taken note of. The impugned judgment has not shied from its duty;
it has infact in detail examined the evidence and the contentions
urged by the parties.
14. The contention of the learned counsel for the appellant that
the judgment of the trial judge dated 01.9.1987 is not a `judgment‟
within the meaning of the Section 2(9) of the Code is not a correct
proposition. As defined under the aforenoted statutory provision,
the court must state the concise statement of the case, points of
determination, the decision and the reasons for this decision. This
mandate has been adhered to by both the fact finding courts. After
reproducing the pleadings, framing of the issues, issue-wise
findings has been given by the Judge. The testimony of each
witness has been noted and taken care of. The judgments of
Rameshwar Dayal (supra) and Santosh Hazari (supra) relied upon
by the learned counsel for the appellant as also those mentioned in
the first substantial question of law have no application. The
judgment is neither shoddy nor unreasoned; for this reason alone,
the judgment is not liable to be set aside.
15. As noted by the Supreme Court in the case of Santosh Hazari
(supra), the High Court sitting in a second appeal can interfere
only if a substantial question of law is raised; its hands are tied; if
no question of law arises, it cannot interfere; only on a substantial
question of law, interference is called for.
16. Ex.PW 6/1 is the site plan of the said property. The houses of
the plaintiffs i.e. house nos. 820-A, 820-B and 820-C are depicted in
yellow, blue and green colour. House no.820 is in front of and
adjacent to house no.820 which is the house of their father. It is
not disputed that house number 820-A, 820-B and 820-C have been
built after the construction of house no.820; they have in fact come
into existence only 3-4 years prior to the filing of the suit as is
evident from the evidence adduced from the courts below; they are
extensions of house no. 820. The site plan shows that access to the
houses of the plaintiff i.e. 820-A, 820-B and 820-C which are in
continuity and in contiguity with one and another is through house
no.820. This is also the version of the defendant in his statement
recorded under Order X of the CPC on 22.3.2002. The disputed
passage has been depicted in red colour in the site plan. This falls
in the portion in between the houses of Ram Singh and Bishamber
on the one side and Kehar Singh and Shiv Charan on the other.
After the street ends there are dotted lines in Ex.PW6/1 depicting
an end/closure. This is also the categorical statement of the
defendant recorded on 22.3.2002 (under Order X of the Code)
wherein he has stated that at both ends of the disputed passage
there are doors of the defendant. Contention of the defendant that
this disputed portion is a part of their compound/property is borne
out. After the disputed portion ends, there is Pahar/rocky area in
front of which again there is an open passage. Houses of the
plaintiffs are accessible through the house of their father. This is
the categorical fact finding of both the courts below and does not
in any manner call for interference. Plaintiffs cannot set up a new
claim and stake their right to the disputed passage/street which is
the dividing street between the houses of Ram Singh and
Bishamber on the one side and Kehar Singh and Shiv Charan. It
cannot be said that the plaintiffs have no other means to access
their houses.
17. Courts below have held that disputed property is not a public
street. This is a private land belonging to the defendants.
Plaintiffs have not acquired any easementary right of
necessity/right of way. Section 4 of the said Act defines an
easement as a right which the owner or occupier of certain land
possesses, as such, for the beneficial enjoyment of that land, to do
an continue to do something, or to prevent and continue to prevent
something being done, in or upon, or in respect of, certain other
land not his own. Counsel for the appellant has not pressed any
claim on easement by prescription. His argument is based on
easementary right of necessity/right of way.
18. In the instant case, the plaintiff has prayed for his right to lay
down water and electricity pipes in this disputed property. It is not
his case that he was earlier enjoying this right; it is not as if what
he had been enjoying earlier is now sought to be interrupted or
taken away. Sections 13 and 14 of the said Act deal with easement
of necessity/ quasi easements and direction of way of necessity.
Section 13 and 14 read as follows:
“13. Easements of necessity and quasi-easementsWhere one person transfers or bequeaths immovable
property to another,-
(a) if an easement in other immovable property of
the transferor or testator is necessary for enjoying
the subject of the transfer or bequest, the
transferee or legatee shall be entitled to such
easement; or
(b) if such an easement is apparent and continuous
and necessary for enjoying the said subject as it
was enjoyed when the transfer or bequest took
effect, the transferee or legatee shall, unless a
different intention is expressed or necessarily
implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or
bequest is necessary, for enjoying other immovable
property of the transferor or testator, the
transferor or the legal representative of the
testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous
and necessary for enjoying the said property as it
was enjoyed when the transfer or bequest took
effect, the transferor, or the legal representative of
the testator, shall, unless a different intention is
expressed or necessarily implied, be entitled to
such easement.
Where a partition is made of the joint property of several
persons,-
(e) if an easement over the share of one of them is
necessary for enjoying the share of another of
them, the latter shall be entitled to such easement,
or
(f) if such an easement is apparent and continuous
and necessary for enjoying the share of the latter RSA No. 12/2002 Page 14 of 16
as it was enjoyed when the partition took effect, he
shall, unless a different intention is expressed or
necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses
(a), (c) and (e), are called easements of necessity.
Where immovable property passes by operation of
law, the persons from and to whom it so passes are, for
the purpose of this section, to be deemed, respectively,
the transferor and transferee.
14. Direction of way of necessity.- When [a right]
to a way of necessity is created under section 13, the
transferor, the legal representative of the testator, or the
owner of the share over which the right is exercised, as
the case may be, is entitled to set out the way; but it
must be reasonably convenient for the dominant owner.”
19. Clauses a, c and e of Section 13 are called easements of
necessity. Before the application of this section, what is a prerequisite is a transfer or bequest of an immovable property to
another. In other words, easement of necessity is one which the
law creates; according to the doctrine of implied grant in a
particular case and is one without which the dominant tenement
cannot be used at all. The right of easement of necessity is implied
only in cases of severance of tenements; unity of ownership of the
dominant and servient tenement at one time or other is essential.
This very first condition which is required to be fulfilled is that
immoveable property has either to be transferred or bequeathed.
An easement of necessity is in fact an easement without which the
property cannot be used at all and not merely one for the
reasonable enjoyment of the property. In considering the question
of easement of necessity absolute necessity and not mere
convenience is the test. It is one which is needed absolutely for the
enjoyment of property.
20. Both the courts below have recorded a cogent and clear
finding that this is the private land of the defendants over which
the plaintiffs have failed to show that it was in their use. No
easementary right as such has accrued in their favour. Such a right
necessarily encompasses that on the severance of a tenement, the
easements that arise are easements of necessity or continuous and
apparent easements, which are necessary for the reasonable
enjoyment of the property granted. Applying this test to the facts
of the instant case, it is clear that it can in no manner be said that
the plaintiffs right to enjoy this property cannot be enjoined or has
been lost by not granting to him the relief claimed by him.
21. The defendant has all along taken the plea that the
properties of the plaintiffs are illegal structures. This is his
contention raised in the written statement. What the plaintiffs now
seek is the legalization of this illegal structure by getting the stamp
of approval from the Court permitting him the laying of electric
and water pipes through this private portion of the defendants.
The statement of the defendant recorded under Order X of the
Code clearly states that the plaintiffs have access to their houses
through the house of their father; it is not as if they have no other
means to approach their houses. Even otherwise in view of the
definition of `easement‟ as contained in Section 4 of the said Act,
easementary right would not include permission to lay down
electric fittings or water pipes in the portion of the another. This is
not the ambit and scope of the definition of `easement‟ as
contained under Section 4 of the said Act. The judgment of
Justiniano Antao and Ors. (supra) related to the motorable access
to the house; it is distinct on its facts. In that case easement by
way of prescription not having been established the claim of the
plaintiff has been dismissed. Easementary right by way of RSA
prescription has not been argued before this court. The argument
of the appellant has been confined to easementary right by
necessity/right of way. The judgment of the bench of the Calcutta
High Court Pravabati Roy (supra) is also inapplicable. It related
to a right of passage where the two courts below had given
concurrent findings that this passage has been used by the plaintiff
and in fact she had no other mode of access to her bathroom
except through the said passage.
22. As already aforenoted there has been no admission by the
defendant in his statement under Order X of the Code of which
gainful advantage can be taken by the appellants. The judgment of
Shri Rajiv Srivastava (supra) is inapplicable. Further the
compromise deed Ex.PW2/2 had been held by the both the fact
finding courts below to be a compromise under coercion which was
not binding on the parties. These fact findings cannot be readdressed or re-visited by the second appellate court.
23. All the aforenoted substantial questions of law have been
answered. There is no merit in the appeal. The appeal as also the
pending application is dismissed.
(INDERMEET KAUR)
JUDGE
NOVEMBER, 10, 2010
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