Uttarakhand High Court
SA/135/2023 on 19 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. 135 of 2023
Hon'ble Vivek Bharti Sharma, J.
Present Mr. Nikhil Singhal, Advocate for the
appellants.
Present Mr. Arvind Vashisth, Senior
Advocate assisted by Mr. Vivek Pathak, counsel
for the respondent no.1.
2. Learned counsel for the
appellants/defendants would submit that the
present Second Appeal is against the concurrent
findings of the Trial Court and the First Appellate
Court recorded against the appellants/defendants.
3. He would further submit that a suit for
permanent injunction was filed by the respondent
no.1/plaintiff against the appellants/ defendant nos.
2 & 3 and the defendant no. 1 Ramkishan who is
not party to this Second Appeal; that, the original
defendant no. 1 Ramkishan is the person who has
sold his land comprising Khasra No.136, Village
Kangdi, District Haridwar to the appellants
/defendants and the respondent/plaintiff; that,
however, original defendant no.1 had expired
during pendency of this suit and his name was
deleted as his successors in interest were already
on record; that, respondent no.1/plaintiff had filed
suit for restraining the appellants/defendants not to
raise construction from point R to X as shown in
the site-plan attached with the plaint with premise
that this part of Khasra no. 136 was purchased by
respondent no.1/plaintiff; that the
appellants/defendants filed the written statement
stating therein that the wall was already in
existence before the time of filing of the suit.
4. He would further submit that prior to the
filing of the present suit another suit being
O.S.314 of 2002 Shivkant vs. Ramkishan and
others was filed by the respondent no.1/plaintiff
against the plaintiffs/defendants for the same cause
of action and the same relief and that suit was
dismissed but this fact was not stated in the plaint
and the Trial Court also did not frame issue on
such a important point that the latter suit, which
gives rise to the present appeal, was barred by the
principle of res judicata.
5. He would further submit that at the instance
of the respondent no.1/plaintiff, Survey
Commission was issued and the Court Amin has
filed his report (Annexure-5) and in his report he
has clearly shown that there is a wall at place
joining the point R and X in the site-plan filed by
the respondent no.1/plaintiff, therefore, no decree
of permanent injunction could have been issued by
the Trial Court.
6. He would further submit that the
appellants/defendants had filed the counter claim
for decree of permanent injunction to restrain the
respondent no.1/plaintiff from making interference
in the peaceful possession of his part of the
property comprising Khasra No. 136 but that was
also wrongly dismissed.
7. He would further submit that despite strong
evidences on record the First Appellate Court also
failed to appreciate this important fact giving
reasons of filing the present appeal on substantial
questions of law framed in the memorandum of
appeal.
8. In the opinion of this Court, the matter needs
deliberations.
9. The appeal is, therefore, admitted on the
following substantial questions of law
i) Whether the suit filed by the respondent
no.1/plaintiff for permanent injunction
was maintainable once the suit filed
earlier being O.S. No. 314 of 2002,
Shivkant vs. Ramkishan and others
between the same parties for the same
cause of action and the same relief was
had already been dismissed?
ii) Whether the Trial Court and the First
Appellate Court has erred in not
appreciating the strong evidence and
have passed the incorrect judgments
without deliberating upon the report of
Amin showing the wall constructed
between points G-H of his report
corresponds to the point line R-X in the
site plan filed along with plaint?
10. Summon the LCR.
11. Till the next date of listing, both the parties
are directed to maintain the status quo as per
report of the Amin (Annexure-5).
12. List on 03.04.2024.
13. Stay Application IA No.1/2023 is disposed
of.
(Vivek Bharti Sharma, J.)
19.10.2023
Kaushal
