Uttarakhand High Court
Hon'Ble Alok Kumar Verma vs Sudhanshu Misra Pathak" on 30 March, 2022
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30.03.2022 SA No. 73 of 2021
Hon'ble Alok Kumar Verma, J.
This Second Appeal has been filed by
the appellant - defendant against the
judgment and decree dated 15.01.2021,
passed by the learned 3rd Additional District
Judge, Dehradun in Civil Appeal No.21 of
2019, "Praveen Kumar Sharma vs.
Sudhanshu Misra Pathak", whereby, the said
First Appeal, filed by the appellant -
defendant, has been dismissed. The First
Appeal was filed against the judgment and
decree dated 19.01.2019, passed by the
learned Trial Court in Original Suit No.627 of
2009, whereby, the learned Trial Court
decreed the Original Suit of the respondent
- plaintiff for possession and perpetual
injunction.
2. Heard Mr. Sudhir Kumar, learned
counsel for the appellant - defendant and
Mr. Piyush Garg, learned counsel for the
respondent - plaintiff on the admission.
3. Admittedly, one Mr. Harshwaroop
Pathak was sole owner of the property-in-
question. Mr. Harshwaroop Pathak had
purchased the said property sometimes in
the year, 1953. Smt. Jayanti Devi Pathak
was his wife and Smt. Sushila Devi was his
daughter.
4. In the instant matter, the respondent
has filed a copy of written statement of the
present respondent, filed in Original Suit
No.511 of 2001. According to the
statements of the said written statement,
Mr. Harshwaroop Pathak died on
30.12.1970, leaving behind his last Will
dated 22.06.1963, whereby, he bequeathed
all his properties, including the property-in-
question to his wife Smt. Jayanti Devi
Pathak. Thus, on the death of Mr.
Harshwaroop Pathak, Smt. Jayanti Devi
became the absolute owner of the property-
in-question. Smt. Jayanti Devi Pathak
executed her registered Will on 04.10.1982,
whereby, she bequeathed all her properties,
including the property-in-question, to the
respondent - plaintiff. She died on
09.08.1983. Smt. Jayanti Devi Pathak was
the grandmother (nani) of the respondent -
plaintiff.
5. Mr. Sudhir Kumar, the learned counsel
appearing for the appellant, submitted that
Mr. Harshwaroop Pathak never executed the
alleged Will dated 22.06.1963. Smt. Jayanti
Devi, wife, and Smt. Sushila Devi, daughter,
of Mr. Harshwaroop were his legal heirs.
Therefore, both of them owned equal share
in his property. The appellant had purchased
the property-in-question, part of share of
Smt. Sushila Devi, through a sale deed
dated 03.06.2008 from Smt. Sushila Devi,
therefore, the appellant is a bona fide
purchaser for consideration within the
knowledge of the respondent - plaintiff.
6. On the other hand, Mr. Piyush Garg,
learned counsel for the respondent
submitted that the previous suits were
decreed in the favour of the respondent -
plaintiff. Therefore, the respondent -
plaintiff is not required to prove his title
again. The learned counsel for the
respondent submitted that the Will dated
22.06.1963 was not disputed in the Original
Suit No.627 of 2009. The sale deed of the
appellant is a sham document. The plea of
the appellant is barred by the principle of
constructive res judicata and challenging the
title of the respondent by the appellant is
barred by the principle of issue-estoppel.
7. Mr. Sudhir Kumar, the learned counsel
for the appellant, in his reply, submitted
that the appellant was not a party in
previous suits, namely, Original Suit No.226
of 2001 and Original Suit No.287 of 2002
and question of title was not involved. In
the Original Suit No.226 of 2001, one Smt.
Manjula Devendra was defendant and in the
Original Suit No.287 of 2002, Smt. Sushila
Mishra Pathak was defendant. The said suit
was simplicitor for injunction. The learned
counsel for the appellant further submitted
that the respondent - plaintiff had not
disclosed the title of Smt. Jayanti Devi in
the earlier suits.
8. In the facts and the circumstances of
the case and after hearing the arguments of
the learned counsel for both the parties, this
Second Appeal is admitted on the following
substantial questions of law:-
(i)Whether in absence of the Will dated
22.06.1963, the respondent - plaintiff
can be held the owner of the property-
in-question?
(ii)Whether the plea of the appellant -
defendant, regarding the Will dated
22.06.1963, is barred by the principle
of constructive res judicata?
(iii)Whether the appellant - defendant
is estopped to raise the plea regarding
the Will dated 22.06.1963?
(iv)Whether the appellant - defendant
can challenge the title of the plaintiff in
view of the earlier judgments between
the predecessors of the parties and
whether the same would be barred by
principle of issue - estoppel?
(v)What shall be effect of non-
discloser of title of Jayanti Devi in the
earlier suits as well as the present
suit?
9. List this case on 21.04.2022.
10. Summon the Original Record.
11. The effect and operation of the
impugned judgments and decree, passed by
the learned courts below, are stayed till the
next date of listing.
12. Mr. Sudhir Kumar, the learned counsel
for the appellant - defendant submitted that
the appellant will not seek any adjournment
on the next date of listing.
(Alok Kumar Verma, J.)
30.03.2022
Pant/
