Uttarakhand High Court
SA/14/2019 on 19 August, 2023
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
SA No.14 of 2019
Hon'ble Vivek Bharti Sharma, J.
Mr. G.S. Negi, counsel for the appellant.
2. Mr. Vijay Bhatt, counsel for the respondents.
3. Counsel for the appellant/plaintiff would
submit that originally suit was filed for a decree of
possession, mandatory injunction and permanent
injunction, which was allowed by the trial court;
that, being aggrieved by the same, the
respondent/defendants preferred the first appeal;
that the First Appellate Court appointed the Survey
Commissioner to demarcate the suit property; that,
on the receipt of the report of the Survey
Commissioner the issue no.4 was framed by the
First Appellate Court and the case was remanded to
the trial court to decide the issue no. 4 whereafter
again the trial court decreed the suit of the
appellant/plaintiff. Being aggrieved, the
respondents/defendants filed the appeal, which was
allowed by the First Appellate Court by the
impugned judgment/order. Hence, this second
appeal by appellant/plaintiff
4. Counsel for the appellant/plaintiff would
assail the judgment of the First Appellate Court on
the ground that the First Appellate Court has
grossly erred by rejecting the site plan duly proved
by PW 2 Jitendra Prasad, the Patwari and relied
upon the report of the Survey Commissioner, which
was prepared in absence of the Amin on the ground
that the Survey Commissioner's report was
prepared in the presence of both the parties and the
report by PW 2 was not prepared in presence of the
respondent/defendant. He would further submit that
the presence of the appellant/plaintiff at the time of
preparation of the report of Survey Commissioner at
site does not mean that the report of the Survey
Commissioner was an admitted fact against the
appellant/plaintiff. He would further submit that the
objections against the report of the Survey
Commissioner were filed and it was incorrectly
rejected by the First Appellate Court.
5. Counsel for the respondent/defendants would
support the judgment of the First Appellate Court
and would submit that in the impugned judgment
the learned First Appellate Court has justified its
findings on the point that the report of the PW2
proved in the trial court is not reliable as it was
prepared in absence of the respondent/defendants;
that, as the report of the Survey Commissioner was
prepared in presence of both the parties, therefore,
that is more reliable and on the basis of that report
the First Appellate Court concluded that the
respondent/defendant is not in possession of any of
the property of the present appellant/plaintiff.
6. Perused in light of the submissions of the
learned counsel for the respective parties and on
perusal of the documents filed with the memo of
appeal reveals that, admittedly, the suit was decreed
in favour of the appellant qua the relief of
possession and mandatory injunction which was set
aside by the First Appellate Court with observation
that the report of the Patwari is not reliable. Hence,
the appeal is admitted on following substantial
question of law:
(i) Whether the First Appellate Court was right
in dismissing the report of PW2 Jitendra
Prasad and the site plan prepared by him on
the ground that it was prepared in absence of
respondent/defendant and accepting the report
of the Survey Commissioner on the premise
that both the parties were present and thereby
also rejecting the objections to report of
Survey Commissioner of the appellant/plaintiff.
7. Summon the LCR.
8. After receipt of LCR, Registry shall prepare
the paper book and provide the same to the counsel
for the parties as per rules, if they move application
for the same.
9. Put up on 21.11.2023.
(Vivek Bharti Sharma, J.)
19.08.2023
BS
