Uttarakhand High Court
SA/148/2022 on 16 November, 2022
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16.11.2022 SA No.148 of 2022
Hon'ble Alok Kumar Verma, J.
Heard Mr. Piyush Garg, learned
counsel for the proposed appellant.
2. According to him, the case of the
proposed appellant-plaintiff is that the
appellant-plaintiff had purchased a land
by way of a sale deed dated 21.11.2002.
The boundary of the said land is
mentioned in the sale deed as follows:-
East-land of Brahmanand.
West-remaining land of the seller.
North-remaining land of the seller.
South-land of other persons.
3. Mr. Piyush Garg, the learned
counsel for the appellant, submitted that
after disclosing the said boundary, it has
also been mentioned in the said sale
deed that 6 feet wide road is coming
from the main road up to the meeting
point of east-north direction of the
purchased land, and, the said road is 4
feet wide after the end of the said 6 feet
road.The defendants were threatening
the plaintiff to block the said passage
(road). Therefore, the plaintiff filed the
suit (Original Suit No.117 of 2015)
against the respondents-defendants
seeking perpetual prohibitory injunction.
He further submitted that the plaintiff
had constructed a building on the said
land. During the pendency of the Original
Suit, a wall was constructed by the
respondents-defendants in the passage-
in-question after the gate of the plaintiff.
Therefore, the plaint was amended and
by amending the plaint a decree of
mandatory injunction was prayed.
4. Learned counsel appearing for the
proposed appellant-plaintiff further
submitted that the Original Suit was
decreed for perpetual injunction and the
respondents-defendants were restrained
to interfere from raising any construction
on the passage, which is 4 feet wide. The
relief of mandatory injunction was
dismissed. Therefore, the proposed
appellant-plaintiff preferred a Civil
Appeal (No.26 of 2019). The said Civil
Appeal was decided on 06.09.2022 and
by deciding the said appeal, the appeal,
filed against the dismissal of the
mandatory relief, has been dismissed as
well as the decree for perpetual
prohibitory injunction, granted by the
learned Trial Court, has also been set-
aside, without there being any cross
appeal or cross objection of the
respondents-defendants.
5. Learned counsel appearing for the
appellant further submitted that the
passage (road)-in-question is the only
passage available to the appellant-
plaintiff and there is no other passage
adjoining the said purchased property.
6. Learned counsel for the appellant
submitted that finding, recorded by both
the Courts, is based upon absolute
misreading of the sale deed dated
21.11.2002.
7. Having heard the learned counsel
for the appellant, the Second Appeal is
admitted on the following substantial
questions of law:-
(i) Whether while dismissing
the appeal, filed by the
plaintiff, the learned
Appellate Court could have
further set aside the part of
the decree passed by the
learned Trial Court in favour
of the plaintiff himself,
without there being any oral
or written cross-objection by
the defendants?
(ii) Whether the finding,
recorded by the learned
Courts below, is based upon
misreading of the sale deed
dated 21.11.2002?
8. Issue notice to the respondents.
9. Steps to be taken within a week.
10. List this case on 11.01.2023.
11. In the facts and circumstances of
the case, the effect and operation of the
impugned judgment and decree dated
06.09.2022, passed by the learned
Additional District Judge, Kotdwar, Pauri
Garhwal in Civil Appeal No.26 of 2019,
are stayed till the next date of listing.
(Alok Kumar Verma, J.)
16.11.2022
Neha
