[Cites 4, Cited by 0]
Uttarakhand High Court
Chand And Others vs Ashish Kumar And on 11 December, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
SL. Office Notes,
No. Date reports,
orders or COURT'S OR JUDGE'S ORDERS
proceedings
or directions
and
Registrar's
order with
Signatures
SA No. 148 of 2025
with
SA No. 149 of 2025
Hon'ble Rakesh Thapliyal, J.
1. Mr. Ramji Shrivastava and Mr. Vishesh
Shrivastava, learned counsel for the
appellants.
2. Mr. I.P.Kohli, Standing Counsel with
Mr. Tarun Mohan, Brief Holder for the
State/respondent no.4.
3. These two second appeals have been
preferred by the plaintiff/appellant against
the judgment and decree dated 14.10.2025,
passed by learned District Judge, Uttarkashi
in Civil Appeal No. 07 of 2025 "Balbir Singh
Chand and others vs. Ashish Kumar and
another" and Civil Appeal No. 16 of 2025
"Kabul Chand vs. Ashish Kumar and
another".
4. The brief facts of the case are that Late
Kishan Lal was given a piece of land on lease
in 1991 under the Government Grants Act,
1895, and thereafter he constructed a shop
and two rooms and for some personal
reason he left Dehradun and handover the
property to the defendant to look after it.
Kishan Lal, the father of the appellant died
on 08.05.2009 and the appellant/plaintiff
being a legal heir got leasehold rights over
the property which was leased out to late
Kishan Lal in 1991. Thereafter, after the
death of late Kishan Lal, the notices were
issued to the defendants to vacate the
property in question but no response was
given ultimately by notice dated 08.05.2017,
the license was terminated and the
defendant was asked to handover the
possession within 30 days. When the
possession was not given, then the plaintiff
who are the appellant herein instituted a suit
bearing O.S. No. 48 of 2018 (renumbered as
O.S. No. 26 of 2023), wherein the
defendants who are the respondents herein
filed the written statement and admitted
about the grant of lease in favour of late
Kishan Lal under the Government Grants
Act. In the written statement three pleas
have been taken by the defendants-
(i) claiming adverse possession over
the property,
(ii) the transfer of land in favour of
them by virtue of unregistered deed on Rs.
100 stamp paper and
(iii) breach of condition of lease.
The trial court proceeded with the
trial and framed 10 issues and decreed the
suit on 26.03.2025.
5. Being aggrieved, the defendants filed a
Civil Appeal No. 07 of 2025 and during the
pendency of this appeal one third person i.e.
Kabul Chand came forward seeking leave
from the first appellate court to file an
appeal on the ground that he is also
aggrieved by virtue of the judgment and
decree dated 26.03.2025. The first appellate
court granted leave to Kabul Chand and a
separate civil appeal bearing Civil Appeal No.
16 of 2025 was registered.
6. Both the appeals were clubbed
together and decided by the common
judgment by the First Appellate Court which
is now under challenge in both the second
appeals.
7. Learned counsel for the appellant
argued that the trial court rightly decreed
the suit by dealing with the two pleas of the
defendant i.e. with regard to the adverse
possession as well as the alternate plea of
transfer by way of unregistered document
and decided the issues against the
defendant. He submits that the first
appellate court without formulating the
relevant point of determination allowed the
appeal and set aside the judgment and
decree passed by the trial court. He further
argued that the first appellate court totally
overlooked the plea of the defendants which
he has raised before the trial court which
admittedly cannot be accepted since the
defendant before the trial court take three
alternate pleas and taking three alternate
pleas is nothing but a misleading statement
of the defendants. He submits that the first
appellate court allowed the appeal only on
the ground which in fact the defendant has
taken before the trial court but the trial court
has not dealt with that condition and that is
with regard to the breach of condition of the
lease. He submits that lease by transfer in
favour of the defendant by virtue of
unregistered document that too on Rs. 100
stamp paper is also not admissible. He
submits that the first appellate court even
has not framed specific point of
determination while dealing the issue of
breach of conditions of the lease.
8. In such view of the matter both the
second appeals are admitted on the
following substantial question of law:-
(i) Whether it is incumbent upon the
Appellate Court to frame the point of
determination as per the provision of Order
41 Rule 31 of C.P.C. while deciding the
appeal as the issue No.10 was reversed by
the learned appellate court without dealing
the same in passing the impugned
judgment?
(ii) Whether the learned lower
appellate court has erred in law holding that
the plaintiff's father has transferred the
lease property in violation of conditions
mentioned in grant of patta?
(iii) Whether the learned lower
appellate court has erred in law by recording
finding regarding ownership against the
plaintiff ignoring the provision contained
under Section 54 and 57 of U.P. Land
Revenue Act, 1901 which draws presumption
in favor of recorded land holder unless
rebutted by evidence?
(iv) Whether the learned lower
appellate court is justified in granting the
leave to appeal to one Kabul Chand at the
final stage of appeal despite he was aware of
the suit proceeding?
9. Mr. I.P. Kohli accept notice for the
State.
10. Issue notices to the remaining
respondents.
11. Learned counsel for the appellant shall
take steps to serve the remaining
respondents within a week.
12. Summon the trial court record as well
as the first appellate court.
13. Till further order the
respondents/defendants no. 3 to 5 are
restrained from creating any third party
interest as well as to change the nature of
the property in question.
14. List after service report.
(Rakesh Thapliyal, J.)
11.12.2025
Nahid
