Uttarakhand High Court
Hon'Ble Alok Kumar Verma vs Smt. Sunita And Another" on 17 October, 2022
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGES'S ORDERS
No
and Registrar's
order with
Signatures
17.10.2022 SA No. 124 of 2022
Hon'ble Alok Kumar Verma, J.
The proposed Second Appeal has
been filed against the Judgment and Decree
dated 18.07.2022, passed by the District
of 2019, "Surendra Singh and others Vs.
Smt. Sunita and another", whereby, the
said Civil Appeal has been dismissed. The
said Civil Appeal was filed against the
Judgment and Decree dated 25.11.2019,
passed by learned Civil Judge (Senior
Division), Pauri Garhwal in Original Suit No.
10 of 2014, "Smt. Sunita and another Vs.
Surendra Singh and others", by which, suit
of the respondents-plaintiffs seeking
possession, demolition and perpetual
injunction was decreed.
Heard Mr. Nikhil Singhal, learned
counsel for the proposed appellants-
defendants and Mr. Sudhir Kumar, learned
counsel for the caveator/respondent no. 1-
plaintiff.
The learned counsel for the
appellants submitted that the said Original
Suit was filed in the year, 2014 and
admittedly, the plaintiffs are not in
possession of the property since 1999 as
stated in the plaint, therefore, the Suit
seeking possession after 12 years is barred
by limitation.
He further submitted that both the
Courts below did not consider that the suit
of the plaintiffs seeking possession and
demolition was not maintainable without
seeking partition in respect of the property
involved.
The learned counsel for the
appellants further submitted that the
appellants-defendants and the
respondents-plaintiffs are co-sharer of
the property-in-dispute.
On the other hand, the learned
counsel for the respondent no. 1 submitted
that the property-in-question was
partitioned during the lifetime of father-in-
law of the respondent no. 1.
Having heard the learned counsel
for the parties, the Second Appeal is
admitted on the following Substantial
Questions of Law:
(i) Whether partition of the
property could be presumed
on account of separate
possession of the co-sharers?
(ii) Whether an oral partition
could be presumed to be
proved on account of
inspection by Patwari of
property involved, prior to
filing the Original Suit?
(iii) Whether the suit of plaintiff is
barred by law of limitation in
respect of relief of possession
over the property involved?
Issue notice to the respondent no.
2.
Steps to be taken within a week.
Admittedly, the date in Execution
Case is fixed for today.
In view of the Deepawali holidays,
and in the facts and circumstances of the
case, the effect and operation of the
impugned Judgment and Decree dated
25.11.2019, passed in the said Original Suit
and the effect and operation of the
Judgment and Decree dated 18.07.2022,
passed in the said Civil Appeal are stayed
till the next date of listing.
List this case on 07.11.2022.
Meanwhile, objection to the Stay
Application, if any, may be filed.
(Alok Kumar Verma, J.)
17.10.2022
PN/-
