SA/53/2023
2023 Latest Caselaw 2129 UK

               Office Notes, reports,
SL.           orders or proceedings or
      Date                                                      COURT'S OR JUDGES'S ORDERS
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               order with Signatures


                                          S.A. No. 53 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. 144 of 2015 as well as order dated 24.09.2018 passed by 1st Additional Civil Judge (Junior Division), Dehradun in Original Suit No. 253 of 2004.

4. Counsel for the appellant 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 to not considered that at the time of passing the order dated 24.09.2015 and 03.04.2023, the respondent/plaintiff is 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 are the owner of the property of Khasra No.199Kha; that, the 1st Appellate Court without considering the relief clause of the plaint has given wrong findings that the respondent/plaintiff sought relief regarding property of Khasra No. 199 Ka, whereas, the respondent/plaintiff initially had stated that he is in possession 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.

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. 144 of 2020 and judgment and decree dated 24.09.2015 passed by 1st Addl. Civil Judge (Junior Division), Dehradun in Original Suit No. 253 of 2004 shall remain stayed.

10. Stay Application (IA 1 of 2023) stands disposed of accordingly.

(Vivek Bharti Sharma, J.) 08.08.2023 Mamta