Uttarakhand High Court
SA/61/2023 on 20 June, 2023
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
S.A. No. 61 of 2023
Hon'ble Vivek Bharti Sharma, J.
Mr. Piyush Garg, counsel for the
appellant.
2. Mr. Neeraj Garg, counsel for
respondent no.1.
3. Counsel for the appellant would submit
that in the trial court he had filed the suit for
permanent injunction and for cancellation of
the sale deed executed by one of the
defendant/respondent in the year 1991. The
trial court passed the decree for permanent
injunction however denied the relief for
cancellation of the sale deed as stated above;
that, both the parties filed the appeal before
the first appellate court being aggrieved by
the impugned judgment/decree of the trial
court in respect of the part of the
judgment/decree; that, the first appellate
court set aside the part of the
judgment/decree passed by the trial court in
respect of granting the decree of the
permanent injunction in favour of the
appellant and against respondent/defendant,
hence this appeal.
4. Counsel for the appellant would further
submit that the physical possession of the suit
property with the appellant/plaintiff was
observed by the trial court, however, the
finding of the first appellate court is
erroneous on this point.
5. Per contra, counsel for the respondent
no.1/defendant would submit that the
judgment/decree of the first appellate court is
correct on the facts and law. However, he
admitted that in the trial court, the judgment
and decree granting permanent injunction in
favour of the appellant was passed with the
finding of physical possession of the suit
property.
6. In view of the above, the second appeal
is admitted on the following substantial
questions of law :
(i) Whether filing of a suit for
specific performance of the contract is
sine quo non for grant of benefit under
Section 53A of the Transfer of Property
Act?
(ii) Whether bar of jurisdiction of
civil court under Section 331 of the UPZA
& LR Act is absolute and is not subject to
Section 331-A of the UPZA & LR Act in
case of a dispute between the parties that
the land is not used for purposes
connected with agriculture?
(iii) Whether an agreement to sale
executed on 23.05.1958 required the
same to be notarized under any provision
of law and non-notarization of the same
in any way affects the validity of the
same?
(iv) Whether non-filing of the suit for
eviction by the defendant against the
plaintiff for more than 12 years even after
filing of a suit by the plaintiff for
declaration and injunction will not result
into extinguishment of the right, title and
interest of defendants in the suit property
under Section 27 of the Limitation Act?
(vi) Whether a document produced in
original and proved by the scriber of the
document requires any further proof and
the same can be held to be not-proved
merely on account of the denial by the
defendant?
7. Lower court record be summoned.
8. Having heard learned counsel for the
parties, as an interim measure, the respondent
no.1 is directed not to interfere with the
physical possession of the appellant/plaintiff
in respect of the suit property and the parties
are directed to maintain status quo over the
suit property till the next date of listing.
9. The appellant is directed to take the
photograph of the suit property on
21.06.2023 with the copy of the newspaper
of the same date i.e. 21.06.2023 and to file
the clearly visible copies of the said
photographs and newspaper before the Court
within a period of one week from today.
10. List this case on 04.09.2023.
11. Interim Relief Application (IA No.1 of
2023) stands disposed of.
(Vivek Bharti Sharma, J.)
20.06.2023
Mamta
