Oral Judgment:
1. This appeal is preferred against the judgment and order dated 11th October 2011 passed by the Adhoc District Judge-2, Wardha in Regular Civil Appeal No. 83 of 2004. The appeal was dismissed. The appeal arose out of judgment and order dated 21st June 2004 passed by the Civil Judge, Junior Division, Wardha in Regular Civil Suit No. 261 of 2000 whereby suit was dismissed.
2. Facts in brief are that appellant and respondent are real brothers. They inherited suit land bearing survey nos. 56 and 57, total area 5.83 HR situated at village Hiwara, Tahsil Sevagram, District Wardha. This ancestral agricultural land was triangular in shape. Both the brothers had entered into a registered Partition Deed (exhibit 51) whereby the aforesaid agricultural land was agreed to be partitioned pursuant to the terms contained therein. The land was divided by drawing east-west boundary. Plaintiff Vishwanath was given half portion (2.92 HR) on southern side. The northern portion admeasuring 2.91 HR out of total land fell to the share of defendant Pandurang. Parties agreed to share the encumbrances on the total land equally.
3. According to the plaintiff, defendant was disturbing his cultivation and, therefore, he filed suit for permanent injunction to restrain defendant from disturbing cultivating possession of the plaintiff over southern side portion which fell to his share. Defendant filed his Written Statement and denied the suit claim. He denied the allegation that he was in any manner disturbing cultivating possession of plaintiff over his portion of land.
4. Learned trial Judge held that the plaintiff had failed to prove that fields survey nos. 56 and 57 were treated as one field in partition and were divided in equal parts by demarcating east-west dhura. Learned trial Judge disbelieved the case of plaintiff that he was in possession of southern half portion of the fields after partition. Learned trial Judge also negatived the case of plaintiff that defendant was disturbing his possession over the portion allotted to him partition. Consequently, learned trial Court dismissed the suit of plaintiff. Learned 1st Appellate Court dismissed the appeal of original plaintiff, as aforesaid.
5. This second appeal was admitted by this Court on 11th June 2008 on the following substantial questions of law “
œ(1) Whether it is permissible to interpret the admitted document i.e. registered partition deed between the parties by giving different meaning to the words by the Court in a suit for permanent injunction as well as can be termed as ambiguous when the contents are neither disputed nor challenged by any party?
(2) Whether whole documentary evidence can be completely discarded on the oral testimony of any party and thereby reject/dismiss the whole suit of the appellant/plaintiff ??
6. Learned counsel for appellant submitted that appellant (original plaintiff) had to institute the suit claiming relief of declaration that defendant had no right to disturb actual physical possession of plaintiff pursuant to the Deed of Partition with further prayer claiming permanent injunction against the defendant to restrain him from disturbing possession of the plaintiff. Learned counsel for appellant strongly relied on documentary evidence in the form of partition deed (exhibit 51) which was, in fact, in the nature of family arrangement between the two real brothers regarding sharing possession of their ancestral land. She submitted that appeal deserves to be allowed.
7. Learned counsel for respondent (defendant) sought to argue that the fact of existence of Government pandhanwas not mentioned in the partition deed (exhibit 51). According to him, through it was a registered Partition Deed between the parties, it was held to be ambiguous by both the Courts below. He submits that that being a finding of fact, no interference is required to be made in the impugned judgments and orders.
8. Ancestral land bearing survey nos. 56 and 57 was admeasuring 2.77 HR and 3.06 HR respectively (total area “ 5.83 HR). Parties to the suit had entered into partition in respect of their ancestral land in the following terms “
(i) Land admeasuring 2.92 HR on southern side by drawing east-west dhurato both the fields fell to the share of plaintiff Vishwanath.
(ii) Land admeasuring 2.91 HR on northern side by drawing east-west dhurato both the fields fell to the share of defendant Pandurang.
It was mentioned in the partition deed that the lands were in common use, cultivation and occupation of the parties till then and it was being partitioned due to the internal disputes. The boundaries of the fields were described as under “
To the East : Field having fallen to the share of Party No. 1 (defendant Pandurang);
To the West : Government nullah;
To the North : Government Shio; and
To the South : Government nullah.
9. On going through the partition deed, it cannot be inferred that the parties had no intention to partition the ancestral property. It is difficult to agree with the findings of the Courts below that there was any ambiguity in the partition deed. The intention of the parties was clear and unambiguous to partition the ancestral landed property. When the documentary evidence is clear and undisputed duly signed by both the parties to the Partition Deed in presence of witnesses and the document was duly stamped and registered, such documentary evidence is on high pedestal than oral evidence. Oral testimony may be afterthought with evil design to deprive the other party of its valid claim. Therefore, in my opinion, considering the primary evidence in the form of document on record. In this case, it is in the form of registered Partition Deed between two brothers. After reading it, I think, it was not open for the learned trial Judge to treat the document of partition as ambiguous when document spelt out clear intention of the parties to partition ancestral land in two equal parts between them. When primary documentary evidence is considered with juxta position with oral evidence on record, in my opinion, the trial Court and the 1st appellate Court could not have completely ignored the registered Partition Deed which was duly exhibited. Defendant never denied partition deed, but his only claim was that he did not disturb the cultivating possession of plaintiff. According to learned counsel for defendant, if the easementary right existed in respect of suit property, mention of such right does not find place in the partition deed. This plea is out of place and cannot come in the way of plaintiff so as not to get declaratory relief and relief of permanent injunction. Moreover, the question as to whether anybody possesses easementary right by prescription or otherwise in accordance with law, is not the subject-matter of the suit. The Courts gelow were unnecessary swayed away from the material facts in issue. This Court is not called upon to enter into the dispute regarding existence or otherwise of any easementary right but the dispute related to partition simplicitor between the two brothers as evidenced in the registered partition deed (exhibit 51). That being so, prayer of the plaintiff/appellant for declaration and permanent injunction deserved to be granted. Substantial Questions of law must be answered accordingly because Courts below had ignored Partition Deed and recitals therein which was material evidence in the case. In such case, interference by this Court is necessary.
10. In the result, impugned judgments and orders are hereby quashed and set aside. Second Appeal is allowed with costs throughout in terms of prayer clause (ii) contained in the memo of appeal. Decree be drawn up accordingly.