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Uttarakhand High Court
Maya And Others --Appellants vs Usha Mittal (Deceased) And Others on 19 December, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 93 of 2025
Maya and Others --Appellants
Versus
Usha Mittal (deceased) and Others --Respondents
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Presence:-
Mr. M.S. Tyagi, learned senior counsel assisted by
Ms. Rajni Rangwal, learned counsel holding brief of
Mr. Pawan Mishra, learned counsel for appellants-
defendants.
Mr. Jitendra Chaudhary, learned counsel for
respondents-plaintiffs.
Hon'ble Pankaj Purohit, J. (Oral)
This defendants' Second Appeal is filed against
the judgment and decree dated 30.04.2025 passed by
learned First Additional District Judge, Dehradun, in Civil
Appeal No.3 of 2010 Bhikhari Lal @ Bhikhari Mal and
Others Vs. G.D. Mittal and Others, whereby, the Civil
Appeal filed by petitioners-defendants was dismissed and
the judgment and decree dated 15.12.2009 passed by
learned First Additional Civil Judge (Jr. Div.), Dehradun,
was affirmed; as well as the aforesaid judgment and
decree dated 15.12.2009.
2. The Original Suit No.243 of 1983 G.D. Mittal
and another Vs. Bhikhari Lal @ Bhikhari Mal and Others,
was instituted by respondents-plaintiffs initially for
following relief:
"(A) For a decree for removal and demolition of the wall
shown by red colour in the plant map and removing all
obstructions caused in flow of natural and other water
around the property in suit.
(B) For a decree for permanent injunction restraining the
defendants from interfering in any manner in the
possession of the plaintiff over the property in suit."
3. The reliefs claimed by the appellants were on
the basis of the facts that the original defendant, the
predecessor of appellants-defendants had raised a wall
over the land in question and obstructed the flow of
Naala situated thereon. Subsequently, on 28.07.1998 by
way of amendment, two more relief were also added by
respondents-plaintiffs, which are as under:
"(A) For a decree if declaration on that the plaintiffs are
owners of property in suit.
(B) In case the plaintiffs are found out of possession,
the decree for possession of the property in suit be
passed in favour of the plaintiffs."
4. It is pertinent to record that the seriatim of the
reliefs have also been changed and the subsequent
reliefs were numbered as (A) & (B) and the earlier reliefs
were numbered as (C) & (D) respectively. The Suit was
decreed by the learned Trial Court vide judgment and
decree dated 15.12.2009. Appellants-defendants, feeling
aggrieved, filed a Civil Appeal No.3 of 2010 Bhikhari Lal
@ Bhikhari Mal and Others Vs. G.D. Mittal and Others,
which too met with the same fate of dismissal. Therefore,
the appellants-defendants are before this Court.
5. It is argued by learned senior counsel for
appellants-defendants that though there was concurrent
finding of fact against the appellants-defendants, still
there is substantial question of law arises in their favour.
He submits that relief claimed by the respondents-
plaintiffs for recovery of possession was highly time
barred for the reason that under law recovery of
possession can be made within 12 years, whereas the
case in hand, the said relief were claimed after a period
of 15 years from filing of the Suit.
6. He further argued that the appellants-
defendants have also contested the case on the ground of
adverse possession. Appellants-defendants have matured
the title in suit property. In addition to the plea of
adverse possession, appellants-defendants claimed the
title over the land in question on the basis of sale deed
dated 14.04.1960.
7. Per contra, learned counsel for respondents-
plaintiffs submitted that respondent-plaintiff during the
relevant period run a brick-kiln over the said property
and the appellants-defendants (Original defendant) was
permitted to stay over the land as he runs a Tanga
during those days. Appellants-defendants raised a wall
over the said property and created obstruction in the
flow of Naala which resulted into filing of the suit.
8. He vehemently submitted that plea of adverse
possession cannot come in the rescue of the appellants-
defendants simply for the reason that the original
appellant-defendant had permissible possession over the
said property. So far as the alleged sale deed dated
14.04.1960 is concerned, it is submitted by him that the
said sale deed is not in respect of the suit property rather
by that sale deed other property was purchased by the
original appellant-defendant-Bhikhari Lal.
9. He strenuously submitted that both learned
Trial Court as well as First Appellate Court has recorded
the findings on the basis of the facts in favour of the
respondents-plaintiffs, therefore, no interference is
required.
10. Having heard the learned counsel for the
parties and having perused the impugned judgments and
decrees as well as the Trial Court Record, this Court is of
the view that the second appeal deserves to be admitted
on the following Substantial Questions of Law:
(i) Whether both the courts below have illegally shifted
the burden of proof on the defendants/
appellants and passed the perverse and illegal
decrees of declaration, eviction and possession
against them regarding the property which is not
identifiable?
(ii) Whether both the courts failed to conclude that
relief in regard to public drainage is of public
nature, which is not maintainable in the present
form of the plaint, being of public nature, which is
covered by Section 91 of CPC?
(iii) Whether the suit was time barred so far relief for
recovery possession is concerned?
11. Admit.
12. As per report, the Trial Court Record has
already received.
13. Put up on 19.03.2026.
14. In the meantime, execution of judgment and
decree dated 15.12.2009 passed by learned First
Additional Civil Judge (Jr. Div.), Dehradun, in Original
Suit No.243 of 1983 G.D. Mittal and another Vs. Bhikhari
Lal @ Bhikhari Mal and Others, shall remain stayed.
15. Stay Application (IA/1/2025) stands disposed
of.
(Pankaj Purohit, J.)
19.12.2025
PN
