SA/41/2023
2023 Latest Caselaw 1562 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                         7th JUNE, 2023

                   SECOND APPEAL NO. 41 of 2023

Between:

Shri Ramdutt Pandey (Deceased) through Legal Representatives
                                              .....Appellants
and

Shri Khimanand Bhatt (Deceased) through Legal Representatives
and Others                                   .....Respondents

Counsel for the Appellants      :    Mr. Piyush Garg, Advocate.

Counsel for the Respondent       :   Mr.    Rajendra    Dobhal,
Nos. 1 to 6                          Senior Advocate assisted
                                     by Mr. Shubhang Dobhal,
                                     Advocate.

Counsel for the Respondent       :   Mr. I.P. Kohli, Standing
No. 7.                               Counsel for State.

Counsel for the Respondent       :   Mr. Anil     Kumar   Bisht,
No. 9.                               Advocate.


Hon'ble Alok Kumar Verma, J.

Proposed appellants are legal representatives of

the original defendant no. 4. Respondent nos. 1/1 to 1/4 are

legal representatives of original plaintiff no. 1. Respondent

nos. 4/1 and 4/2 are legal representatives of deceased

plaintiff no. 4.

2. According to the plaintiffs, a deed of freehold was

executed by the State Government in favour of the plaintiffs

on 28.03.2000, which was registered on 30.03.2000. The

said deed was cancelled by Secretary of State Government

vide its order dated 22.03.2001 and thereafter, District

Magistrate had issued a consequential order on 03.04.2001.

The said deed was cancelled without granting any

opportunity of hearing to the plaintiffs. Therefore, plaintiffs

had filed an Original Suit (O.S. No. 12 of 2001) against

respondent nos. 7 to 9 - defendant nos. 1 to 3 and

defendant no. 4 seeking declaration to declare the order

dated 22.03.2001 and 03.04.2001, passed by the defendant

no. 2 and defendant no. 1 respectively as illegal, to stay the

implementing the said orders and to restrain defendant nos.

1 and 2 to execute freehold deed in favour of defendant no.

4. As per the case of State Government and defendant no.

4, defendant no. 4 is a tenant of defendant no. 3 on the suit

property. In the said Original Suit, defendant no. 4 had filed

a counter claim. The said counter claim was returned by

Trial Court. The Trial Court decreed the suit and while

deciding the issue Nos. 2, 8 and 9, certain findings were

recorded against the appellants.

3. Against the judgment and decree dated

21.12.2013, passed by learned Trial Court, respondent

nos. 7 to 9 had filed a Civil Appeal (No. 12 of 2018) while

the appellants had filed a Civil Appeal (No. 13 of 2018)

challenging the said findings of the Trial Court. Both the Civil

Appeals have been dismissed vide judgment and decree

dated 24.12.2022. Appellants have filed the present Second

Appeal against the judgment and decree, passed in Civil

Appeal No. 13 of 2018.

4. Heard Mr. Piyush Garg, learned counsel for the

appellants, Mr. Rajendra Dobhal, learned Senior Advocate

assisted by Mr. Subhang Dobhal, learned counsel for

respondent nos. 1 to 6, Mr. I.P. Kohli, learned Standing

Counsel for respondent no. 7 and Mr. Anil Kumar Bisht,

learned counsel for respondent no. 9.

5. Mr. Piyush Garg, learned counsel for the

appellants, argued that the plaintiffs had got the freehold

deed by playing fraud with the State Government, therefore,

the plaintiffs, beneficiary of fraud, are not entitled to obtain

a decree of declaration and injunction in their favour on the

ground that a registered freehold deed once executed

cannot be cancelled by the State Government. Mr. Piyush

Garg, Advocate, contended that the Administrative Authority

has inherent jurisdiction to cancel its own order if such order

was obtained by playing fraud. In support of his

submissions, he has relied upon paragraph no. 73 of the

judgment, passed by Hon'ble Andhra Pradesh High Court in

"Yanala Malleshwari v/s Smt. Ananthula Sayamma,

AIR 2007 AP 57 (FB)".

6. On the other hand, Mr. Rajendra Dobhal, learned

Senior Advocate, has submitted that against the concurrent

findings, the present Second Appeal is not maintainable. He

further submitted that a registered deed can be cancelled

only under Section 31 of the Specific Relief Act, 1963. In

support of his submission, he has relied upon a judgment of

this Court dated 28.05.2007, passed in First Appeal No. 31

of 2002, "Kamleshwar Prasad and Another vs.

Municipal Board, Mussoorie".

7. Having regard to the submissions of learned

counsel for the parties, it would be appropriate to decide the

rival contentions after framing the substantial questions of

law.

8. Present Second Appeal is admitted on the

following substantial questions of law:-

(i) Whether the plaintiffs were entitled to obtain decree

of declaration and injunction in their favour on the

ground that a freehold deed once executed can be

cancelled only by a competent Civil Court?

(ii) Whether learned Appellate Court could have

recorded contrary finding to the finding recorded by

learned Trial Court in favour of the defendant without

upsetting the same and without there being any cross-

objection on behalf of the plaintiffs?

9. Summon Lower Court Record.

10. List on 04.10.2023.

11. In the facts and circumstances of the case, parties

are directed to maintain status quo on the suit property till

further order.

12. Interim Relief Application (IA No. 1 of 2023) is

disposed of accordingly.

__________________

ALOK KUMAR VERMA, J.

Dt: 7th June, 2023 Shiksha