Uttarakhand High Court
SA/112/2023 on 13 September, 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.112 of 2023
Hon'ble Vivek Bharti Sharma, J.
1. Present Mr. Siddhartha Singh, counsel for
the appellant.
2. Present Mr. Arvind Kumar Sharma,
counsel for respondent.
3. Heard.
4. Counsel for the appellant would submit
that respondent/plaintiff had filed the suit
seeking a decree of perpetual prohibitory
injunction against the appellant/defendant in
which the appellant/defendant filed his written
statement and also the counter claim; that, the
counter claim of the appellant/defendant was
decreed whereas the suit of the
respondent/plaintiff was dismissed; that, the
respondent/plaintiff preferred the First Appeal
against the dismissal of suit and thereafter also
filed another appeal against the decree vis-à-vis
the counter claim.
He would further submit that the First
Appellate Court allowed the appeal of the
respondent/plaintiff in respect of decree of the
counter claim with the findings and observation
that the trial court did not have jurisdiction to
pass the decree vis-à-vis counter claim as the
matter was in respect of demarcation, which is
in the jurisdiction of the Revenue Court,
however, at the same time, the First Appellate
Court allowed the appeal filed by the
respondent/plaintiff against the dismissal of the
suit.
He would further submit that both the
judgments of the First Appellate Court are
contradictory to each other; that, if the trial
court was not having the jurisdiction to pass the
decree on the counter claim then how can it
have the jurisdiction to try the suit for perpetual
prohibitory injunction.
5. Per contra, counsel for the
respondent/plaintiff would oppose the appeal,
however, he admitted at Bar that the First
Appellate Court has allowed the appeal of the
respondent/plaintiff thereby decreeing the suit
and has further allowed the appeal preferred
against the decree of counter claim on the
ground of jurisdiction.
6. In view of the above, the appeal is
admitted on the following substantial questions
of law:-
"A. Whether Learned First Appellate Court
had erred in law in deciding the statutory
first appeal without proceeding issue wise or
by framing points for determination as
required under Order 41 Rule 31 CPC
which in turn vitiates the impugned judgment
dated 17.08.2023?
B. Whether the impugned judgment dated
17.08.2023 passed by Learned First
Appellate Court could be sustained after
holding that Civil Court lacks jurisdiction in
the present dispute, by allowing Civil Appeal
No. 2 of 2017 against the dismissal of
injunction suit, Civil Appeal No. 22 of 2021
against the decree of counter claim when the
impugned judgment dated 17.08.2023 leads
to passing of decree in favor of plaintiff and
dismissal of counter claim?"
Stay Application (IA No.1/23)
7. Counsel for the appellant/defendant would
submit that issue no.5 was framed to the effect
that "Whether in the south direction of the
exhibit place marked as A and E in the map
filed along with the written statement, there is
khasra no.105, old khasra no.72 which belongs
to the defendant/respondent" and that was
decided in favour of the appellant/defendant by
the trial court.
He would further submit that in the
impugned judgment the First Appellate Court
did not touch this issue, instead it simply
observed in para 21 of the impugned judgment
that as the dispute is essentially in the nature of
the demarcation of the property, which is
subject matter of the revenue court, therefore,
the civil court did not have the jurisdiction to
decide the issue.
8. Having considered the submissions of
learned counsel for the parties and upon perusal
of the grounds mentioned in the Stay
Application, till the next date of listing, the
respondent/plaintiff is restrained from
interfering in the possession of the
appellant/defendant in respect of Khasra
No.105. (Stay Application IA No.1/2023 is
disposed of).
9. Put up on 05.12.2023.
(Vivek Bharti Sharma, J.)
13.09.2023
BS
