Uttarakhand High Court
Company) vs Kamal Singh" on 26 August, 2022
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26.08.2022 SA No.97 of 2022
Hon'ble Alok Kumar Verma, J.
The present Second Appeal has been
filed against the judgment and decree dated
24.05.2022, passed by the learned VIIth
Additional District Judge, Dehradun in Civil
Appeal No.71 of 2018, "DTC India (Tea
Company) vs. Kamal Singh", by which, the
First Appeal has been allowed. The First
Appeal was filed against the judgment and
decree dated 20.04.2018, passed by the
learned Trial Court in Original Suit No.287 of
2010, "DTC India (Tea Company) vs. Kamal
Singh". By allowing the First Appeal, the
learned Appellate Court has directed the
appellant to remove the construction within
thirty days from the judgment and decree
dated 24.05.2022, otherwise, the plaintiff will
be entitled to demolish the construction
through the court.
2. Heard Mr. Priyanshu Gairola, the
learned counsel for the appellant and Mr.
Siddhartha Singh, the learned counsel for the
respondent/Caveator.
3. Mr. Priyanshu Gairola, the learned
counsel for the appellant-defendant,
submitted that the appellant is in possession
of the land-in-question since 1983. The
appellant's name is recorded in the Revenue
Records, and, the relevant records were filed
by him before the learned Trial Court. The
respondent-plaintiff had instituted the said
original suit against the appellant for
perpetual injunction and for obtaining
possession of the land-in-question from the
appellant, however, by means of an
amendment, the said prayer of the possession
was modified seeking demolition of the
construction.
4. Mr. Priyanshu Gairola, the learned
counsel for the appellant-defendant, further
submitted that in the written statement, the
appellant had stated that the land-in-question
is not identifiable and the Civil Court has no
jurisdiction to try the suit of the plaintiff,
since the land-in-question is agricultural land.
5. On the other hand, Mr. Siddhartha
Singh, the learned counsel appearing for the
respondent-plaintiff, submitted that the
plaintiff is Bhumidhar of the land-in-question.
He further submitted that no issue was
framed by the learned Trial Court regarding
the jurisdiction of the Civil Court. Therefore, it
would be deemed that the appellant-
defendant had waived his said plea that the
Civil Court has no jurisdiction to try the
respondent-plaintiff's suit. Therefore, in view
of the provision of sub-Section (1A) of Section
331 of the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950, (hereinafter
referred to as "the Act, 1950") (as applicable
in the State of Uttarakhand), the present
Second Appeal is not maintainable.
6. In support of his submissions, the
learned counsel for the respondent has relied
upon a judgment dated 23.04.2013 of this
High Court, passed in Second Appeal No.519
of 2001, "Satyendra alias Babu and Others
vs. Smt. Phullan and Others".
7. In reply, the learned counsel for the
appellant submitted that the said judgment
was passed on the facts of the said case, and,
the learned Trial Court had framed an issue
regarding the maintainability of the suit, and,
at the time of deciding the said issue, the
learned Trial Court had held that the suit of
the respondent-plaintiff was barred by Section
331 of the said Act, 1950.
8. Under Section 100 of the Code of Civil
Procedure (as amended in 1976), the
jurisdiction of the High Court to interfere with
the judgment of the Court below is confined
to hearing on substantial question of law.
9. Admittedly, the appellant-defendant is
in possession of the land-in-question. The
learned Trial Court had dealt with the
provision of Section 331 of the said Act, 1950.
In these circumstances, the plea raised by
both the parties and their legal effects can be
settled only by framing the substantial
question of law.
10. The Second Appeal is admitted on the
following substantial questions of law:-
(i)Whether a suit for possession
couched in the form of injunction and
demolition in respect of an agricultural land
where principally relief of restoration of
possession is a hidden relief, would not be
barred under Section 331 of the U.P.Z.A and
L.R. Act?
(ii)Whether the plea of the lack of
jurisdiction, taken by the appellant-defendant,
will be deemed to be waived due to non-
framing of such issue.
11. The learned counsel for the respondent-
plaintiff requested two weeks' time to file
objection(s) to the stay application.
12. List this case on 09.09.2022.
(Alok Kumar Verma, J.)
26.08.2022
Neha
