Uttarakhand High Court
SA/54/2023 on 8 August, 2023
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Date COURT'S OR JUDGES'S ORDERS
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S.A. No. 54 of 2023
Hon'ble Vivek Bharti Sharma, J.
Mr. Bhuwan Bhatt, counsel for the appellants.
2. Mr. B.S. Adhikari, counsel for respondent.
3. Present second appeal has been preferred
against the impugned judgment and decree dated
03.04.2023 passed by 3rd Additional District Judge,
Dehradun in Civil Appeal No. 130 of 2015.
4. Counsel for the appellants would submit that the
trial court framed seven issues; that, the trial court
given perverse and contradictory findings while
deciding the issue nos. 1, 4, 5 & 7 vide judgment and
order dated 24.09.2015.
He would further submit that 1st Appellate Court
grossly erred in not giving any findings in respect of
issue nos.1,4,5 & 6; that, both the courts below have
made manifest error of law in not considering that at
the time of passing the order dated 24.09.2015 and
03.04.2023, the respondent/plaintiff was not owner of
the property in question; that, the 1st Appellate court
has given perverse findings without any evidence that
the appellants are in possession on the property of the
respondent/plaintiff.
He would further submit that the trial court
erred in law in giving findings regarding the issue
nos.4 & 5 i.e., as to whether the respondent/plaintiff
has shown the wrong boundaries of the property in
question and as to whether respondent/plaintiff did
not have any cause of action as the trial court failed to
understand the case of the defendant that the
respondents/plaintiff on the basis of wrong boundaries
wants to grab the property of the appellant/defendant;
that, the trial court has wrongly decided the issue no.5
in favour of the respondent/plaintiff that the
plaintiff/respondent have any cause of action, whereas
as per findings of issue nos.2 & 3, the trial court gave
finding that the plaintiff/respondents could not
succeed to prove that the defendants/appellants were
the licensee.
He would further submit that in their written
statement the appellants/defendants had specifically
stated that they were the owner of the property of
Khasra No.199Kha but the 1st Appellate Court
wrongly decreed the suit in respect of Khasra
no.200Gha as stated in prayer clause; that, both the
courts below erred in not appreciating the fact that in
para 1 of the plaint the property is Khasra No. 199 Ka,
whereas, the respondent/plaintiff in prayer clause
sought relief in respect of property bearing Khasra
No. 200 Gha.
He would further submit that the 1st Appellate
Court erred in not giving any findings on the facts that the
property of the appellants/defendants is not exactly Khasra
No.199 kha but in fact is the property situated at Khasra
No.199 Ka. He would further submit that both the
courts below are erred in law in not considering the
evidence and facts of the case while passing the
impugned decree, therefore, the same are liable to be
quashed.
5. Per contra, learned counsel for the
respondent/plaintiff would submit at Bar that
admittedly the property situated at Khasra No. 199Ka
and 199Kha are different and it is also admitted that
the wrong decree for possession of property Khasra
No.200 Gha is passed for which, the
respondent/plaintiff is taking recourse before the trial
court.
6. Let the case as may be, it is admitted that the 1st
Appellate Court has not given any findings
differentiating the Khasra No.199 Ka and Khasra No.
199 Kha and has not given specific and clear findings
that the appellants/defendants is claiming to be in
possession and owner of Khasra no.199 kha but the
same is Khasra no.199 ka.
7. In view of the above, the second appeal is
admitted on the following substantial questions of
law:
(a) Whether the 1st Appellate Court was justified to
pass the decree for possession of the property
no.200 Gha when in paragraph no.3 of the plaint
the property is stated to be khasra no.199 ka.
(b) Whether the 1st Appellate Court was erred to
justify in passing the decree of possession without
giving any specific finding that the property of the
appellant/defendant is 199-kha is exactly Khasra
no.199 ka.
(c) Whether the decree for possession could be
passed without ascertaining the property in
dispute and its boundaries by declaring the
appellant/defendant to be a licensee of the
respondent/plaintiff.
(d) Whether the 1st Appellate Court justified in
not giving the clear finding in respect of
remaining issues in general and issue no.4 and 5
is specific as framed by the trial court.
8. List this case on 06.11.2023 along with S.A.
No. 53 of 2023.
9. Till the next of listing, the effect and operation
of the impugned judgment dated 03.04.2023 passed
by 3rd Addl. District Judge, Dehradun in Civil Appeal
No. 130 of 2015 "Shri Bhanu Bhushan Vs. Shri Indu
Bhushan (deceased) & others" shall remain stayed.
10. Stay Application (IA 1 of 2023) stands
disposed of accordingly.
(Vivek Bharti Sharma, J.)
08.08.2023
Mamta
