Uttarakhand High Court
SA/103/2023 on 17 October, 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.103 of 2023
Hon'ble Vivek Bharti Sharma, J.
Mr. Nagesh Aggarwal, Advocate for the
appellant/defendant.
2. Learned counsel for the appellant/defendant
would submit that the suit was filed by the
respondent/plaintiff with the averments that he is
the owner of about 8 biswas of land and the same
was given on license to the appellant/defendant to
reside thereat and now he does not want to keep
him as his licensee, hence, the suit for possession
and mesne profit was filed against the
appellant/defendant; that, the Trial Court framed
issue no.1 "whether the respondent/plaintiff is the
owner of suit property i.e. 8 biswa of land" and
issue no.5 "whether respondent/plaintiff is entitled
to get mesne profit @ ` 50/- per day"; that,
however, notwithstanding the findings given on
these two issues, the Trial Court decreed the suit
in favour of the respondent/plaintiff.
3. He would further submit that the
respondent/plaintiff has not specifically stated that
he was the owner of the land in question; that, the
Trial Court in its judgment while deciding issue
no.1 has specifically recorded a finding that the
respondent/plaintiff was the owner of only 4 biswa
of land out of 8 biswas respondent/plaintiff had
claimed; that, while deciding issue no.5 the Trial
Court observed that respondent/plaintiff was not
entitled for any mesne profit for the occupation of
the property in question.
4. He would further submit that aggrieved by
the judgment/decree of Trial Court, the
appellant/defendant preferred the first appeal
whereas the respondent/plaintiff also filed cross
appeal in respect of findings recorded on issue
nos.1 and 5.
5. He would further submit that the First
Appellate Court while recording finding on issue
no.1 inexplicably observed that as the
appellant/defendant is in possession of the suit
property comprising of 8 biswas of land as
licensee of the respondent/plaintiff, therefore, on
that basis, the respondent/plaintiff is the owner of
whole of the suit property. He would further
submit that the Trial Court as well as the First
Appellate Court has committed illegality in
decreeing the suit of the respondent/plaintiff and
the same are unsustainable in the eyes of law.
6. In view of this Court, the matter requires
deliberation.
7. Admit the appeal on the following
substantial questions of law:-
I) Whether both the court below erred in law in
considering the evidence of power of attorney
as a legal evidence to prove the factum of
licence and permissive possession in absence of
evidence of plaintiff and other documentary
evidence?
II) Whether the court below erred in law by
holding the plaintiff as the owner of 8 biswa
land totally in contravention to the
documentary and oral evidence?
III) Whether a power of attorney holder can
depose the factum of granting license on behalf
of his principal?
8. Issue notice to the respondents through
ordinary process and registered post,
acknowledgment due as well as by Email and
WhatsApp, if available.
9. Steps to be taken within a week.
10. List on 10.04.2024.
11. The effect and operation of the
judgment/decree dated 31.05.2023 passed in Civil
Appeal No.28/2015 and the judgment/decree
dated 18.12.2014 passed in O.S No.56 of 2008
shall remain stayed till further orders.
12. Stay Application IA No.1/2023 is disposed
of.
(Vivek Bharti Sharma, J.)
17.10.2023
Rajni
