Uttarakhand High Court
"Mohd. Humaun Alias Bhure And ... vs Intazar Hussain" on 11 May, 2022
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11.05.2022 SA No. 205 of 2019
Hon'ble Alok Kumar Verma, J.
This Second Appeal has been filed
against the judgment and decree dated
25.07.2019, passed by the learned Ist
Additional District Judge Haldwani, District
Nainital in Civil Appeal No.20 of 2015,
"Mohd. Humaun alias Bhure and Others vs.
Intazar Hussain", whereby the said appeal,
filed by the appellants - plaintiffs, has been
dismissed. The said appeal was filed against
the dismissal of the Original Suit No.72 of
2007.
2. Heard Mr. Aditya Singh, learned
counsel for the appellants and Mr. M.S.
Tyagi, learned Senior Advocate assisted by
Mr. Ahrar Baig, learned counsel for the
respondent.
3. According to the learned counsel
appearing for the appellants, the appellants
are in possession of the property-in-
question since 1997. The respondent is not
the owner of the said property. The
respondent was given a notice under
Section 4 of the Uttar Pradesh Public
Premises (Eviction of Unauthorised
Occupants) Act, 1972. The learned counsel
for the appellants submitted that in the
original suit i.e. in Original Suit No.72 of
2007, the respondent had filed a counter
claim and the said counter claim was barred
by the principles of res judicata in the light
of the judgment, passed by the Writ Court
of this High Court on 13.05.2013 in Writ
Petition (M/S) No.919 of 2007, "Intezar
Hussain and Another vs. State of
Uttarakhand and Others".
4. On the other hand, the learned Senior
Advocate appearing for the respondent
opposed the submissions of the learned
counsel for the appellants and submitted
that the respondent is the owner of the
property-in-dispute and an appeal under
Section 9 of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1972 is still
pending. The learned Senior Advocate
further argued that in the said writ petition,
the appellants were not party, therefore,
the principles of res judicata is not
applicable.
5. In support of his submissions, the
learned counsel for the appellants has relied
upon a judgment of the Privy Council in
Kalipada De and Others vs. Dwijapada
Das and Others, AIR 1930 PC 22.
6. The learned Senior Advocate,
appearing for the respondent, argued that
the said judgment of Privy Council is not
applicable in this matter.
7. Having heard the learned counsel for
both the parties and after perusing the
records, it would appropriate to formulate
substantial question of law and then, the
matter should be heard on merit.
8. Therefore, this Second Appeal is
admitted on the following substantial
question of law:-
Whether the case of the respondent is
barred by the principles of res judicata
in terms of the judgment rendered
by this High Court in WPMS No.919 of
2017, "Intezar Hussain and Another
vs. State of Uttarakhand and Others"?
9. Admittedly, an execution proceeding is
pending before the concerned court.
10. The learned Senior Advocate for the
respondent submitted that the respondent
undertakes that the respondent will seek
adjournment in the execution proceeding till
the next date of listing.
11. At the request of the learned counsel
for both the parties, list this case on
21.06.2022 for final hearing.
(Alok Kumar Verma, J.)
11.05.2022
Pant/
