Uttarakhand High Court
SA/120/2024 on 2 January, 2025
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGES'S ORDERS
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and Registrar's
order with
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02.01.2025 SA No. 120 of 2024
H on'ble Vive k Bha r t i Sha r m a , J.
Mr. B. D. Pande with Mr. Bharat Tewari, counsel
for the appellant.
2. Mr. Mohd. T. Siddique, counsel for the
respondent.
3. The present second appeal is preferred to set-aside
the judgment and decree dated 05.09.2024 passed by
the 1st Additional District Judge, Kashipur, District
Udham Singh Nagar in Civil Appeal No. 04 of 2024 as
well as the judgment dated 05.01.2024 and decree dated
12.01.2024 passed by the 1st Additional Civil Judge
(Junior Division) Kashipur, District Udham Singh
Nagar in Original Suit No. 38 of 2017.
4. Counsel for the appellant/plaintiff would submit
that the appellant/plaintiff filed a suit for declaration
and injunction praying that appellant be declared the
owner of the suit property on the basis of adverse
possession; that, the Trial Court vide its judgment and
decree dated 05.01.2024 erroneously dismissed the suit
of the appellant/plaintiff and decreed the counter claim
of the respondent/defendant.
Feeling aggrieved, the appellant/plaintiff
preferred appeals before learned District Judge, Udham
Singh Nagar, which were dismissed by the 1st Addl.
District Judge, Kashipur, District Udham Singh Nagar
vide judgment dated 05.09.2024.
5. Counsel for the appellant/plaintiff would further
submit that in previous suit filed by the
appellant/plaintiff in the year 2004, a counter claim of
possession in respect of the suit property was also
sought by the respondent/defendant and the same was
not decided and in this suit also the relief of possession
was prayed for by the respondent/defendant by filing
counter claim, therefore, the same is barred bar law.
He would further submit that the counter claim of
the possession could not have been filed, admitted and
adjudicated for the reason that it is admitted case of the
respondent/defendant that an agreement to sell was
executed, though it was not registered, between the
parties for sale of the suit property for an amount of
`45,000/- for which, admittedly, part payment of
`30,000/- had already been paid to the
respondent/defendant; that, no decree of possession
could have been filed for without taking into
consideration that the part payment had already been
paid for, therefore, the possession of the
appellant/plaintiff was not unauthorized and illegal;
that, no decree of possession could have been filed on
the counter claim of the respondent/defendant without
making any specific claim for refunding the amount of
the part of the sale consideration that had already been
received by the respondent/defendant; that, in absence
of any averment in the counter claim by
respondent/defendant for making an offer for refunding
the part payment of the sale consideration in proportion
of increased market value, no decree of possession
could have been filed.
6. Per contra, learned counsel for the
respondent/defendant would submit that in the previous
suit filed by the appellant/plaintiff for specific
performance, counter claim of the respondent/defendant
was not admitted, consequently, not adjudicated finally,
therefore, no res-judicata would apply for the counter
claim of possession of the suit property in the second
suit filed by the appellant/plaintiff.
7. In view of the above, this Court is of the
considered view that the matter needs deliberation,
accordingly, the second appeal is admitted for
adjudication on the following substantial questions of
law:
a) Whether the learned Courts below erred in not
considering that the plaintiff has perfected her
rights over the suit property by way of adverse
possession, more particularly when suit for
eviction against the plaintiff is not filed within
limitation?
b) Whether the learned Courts below erred in not
considering that the plaintiff became the owner of
the property by virtue of adverse possession and
ignored the material and evidence in this regard
on record?
c) Whether the finding/observation of the learned
Courts below with regard to Section 53-A of
Transfer of Property Act are justified under the
facts and circumstances of the present matter?
d) Whether the counter claim of the defendant for
possession was barred by res-judicata and the
findings/observations of the learned Courts below
in this regard are tenable?
8. List this matter on 23.04.2025.
9. The effect and operation of the judgment and
decree dated 05.09.2024 passed by the 1st Additional
District Judge, Kashipur, District Udham Singh
Nagar in Civil Appeal No. 04 of 2024 as well as the
judgment dated 05.01.2024 and decree dated
12.01.2024 passed by the 1st Additional Civil Judge
(Junior Division) Kashipur, District Udham Singh
Nagar in Original Suit No. 38 of 2017 shall remain
stayed during pendency of the appeal.
10. Stay Application (IA No. 01 of 2024) stands
disposed of accordingly.
( Vive k Bh a r t i Sh a r m a , J.)
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