Uttarakhand High Court
SA/100/2023 on 18 October, 2023
Office Notes,
reports,
orders or
proceedings
SL.
Date or directions COURT'S OR JUDGES'S ORDERS
No
and
Registrar's
order with
Signatures
S.A. NO. 100 of 2023
Hon'ble Vivek Bharti Sharma, J.
Mr. Neeraj Garg, counsel for the
appellants/plaintiffs.
Mr. Arvind Vasishtha, Senior Counsel assisted
by Mr. Vivek Pathak, counsel for caveator.
2. Present second appeal has been filed against the
judgment and decree dated 15.07.2023 passed by 4th
Additional District Judge, Dehradun in Civil Appeal
No. 144 of 2017, whereby the judgment and order
dated 14.11.2017 passed in favour of the appellants/
plaintiffs by the court of 1st Additional Civil Judge
(Senior Division), Dehradun in O.S. No. 583 of 2011
has been set aside.
3. Counsel for the appellant would submit that the
suit was filed for decree of permanent injunction
thereby restraining the defendants/respondents from
interfering with or obstructing the 10 feet vide way
towards his property; that, the suit was decreed by the
trial court. However, the 1st appellate court, in the
appeal preferred by the respondent no.1/defendant set
aside the decree of permanent injunction issued by the
trial court.
He would further submit that judgment of the 1st
appellate court is not unsustainable under the law as the
same has been passed without giving any findings and
the same is merely an eyewash and it has reiterated the
whole of the memo of appeal of the respondent
no.1/defendant before it and have not dealt upon the
legal issues and evidences which made by the trial
court to pass the decree of permanent injunction
against the defendants/respondents.
4. Senior counsel for the respondent would contest
the said submission by submitting that 1st Appellate
Court in paragraph no.25 of its judgment has given the
reason that the appellant/plaintiff cannot be permitted
to encroach the land of defendant no.1 under the garb
of the sale deed and this issue could be decided by the
competent court.
5. This Court thinks that the issues involved in the
second appeal needs deliberation.
6. In view of the above, the second appeal is
admitted on the following substantial questions of law:
(i) Whether impugned judgment passed by
learned Lower Appellate Court could sustain for want
of framing and deciding points for determination as
required by Order 41 Rule 31 C.P.C.
(ii) Whether learned Lower Appellate Court
was justified in passing the impugned judgment relying
upon the evidence beyond pleadings of defendant, and
ignoring the provisions of Order 6 Rule 9 C.P.C.
(iii) Whether learned Lower Appellate Court
justified in passing the impugned judgment ignoring
the Amin report paper no.42C which was a valid piece
of evidence in view of Order 26 Rule 10(2) C.P.C.
(iv) Whether learned Lower Appellate Court
was justified in passing the impugned judgment
ignoring the provisions of Clause (e) and (f) of Section
13 of Easement Act, 1882 even presuming without
admitting the factum of alleged oral partition.
7. Issue notices to the unserved respondents
through ordinary process and registered post
acknowledgment due as well as through e-mail and
whatsapp, if available.
8. Steps to be taken within one week.
9. Summon the Lower Court Record.
10. Put up on 03.04.2024.
11. Meanwhile, the operation of the impugned
judgment of the 1st Appellate Court dated 15.07.2023
passed by 4th Additional District Judge, Dehradun in
Civil Appeal No. 144 of 2017 shall remain stayed till
further orders of the Court.
(Vivek Bharti Sharma, J.)
18.10.2023
Mamta
