SA/22/2016
2025 Latest Caselaw 177 UK

Uttarakhand High Court

SA/22/2016 on 7 May, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

              Office Notes,
             reports, orders
             or proceedings
SL.
      Date    or directions                   COURT'S OR JUDGE'S ORDERS
No.
             and Registrar's
               order with
               Signatures
                               CLMA No.17085 of 2019 for Amendment
                               in
                               SA No.22 of 2016
                               Hon'ble Rakesh Thapliyal, J.

1. Mr. Avtaar Singh Rawat, learned Senior counsel, assisted by Mr. Rajveer Singh and Mr. Inder Pal Kohli, learned counsel for the appellants.

2. Mr. Ramji Srivastava and Mr. Sagar Kothari, learned counsel for respondent No.3

3. The matter heard at length.

4. The plaintiff-appellant filed original suit No.1016 of 2001 seeking permanent injunction over the property leased out through two Lease deed dated i.e. 18.06.1983 and 25.01.1993. In this suit the Trust-Bhikhan Lal Charitable Trust, one of the defendant, filed a counter- claim through power of attorney holder questioning the subsequent lease deed dated 25.01.1993.

5. The suit was decreed on 21.12.2013 partly as well as the counter claim of the defendant-Trust was allowed partly. On perusal of the judgment of the trial Court, the judgment confined to only Lease Deed dated 25.01.1993, which pertains to a land measuring 312 sq ft.

6. Against the judgment of the trial Court, the first appeal was filed by the plaintiff- appellant paying court fees on the basis of the valuation of the suit as well as valuation of counter claim. The first appeal was also dismissed on 07.10.2015 and being aggrieved with the same, the plaintiff-appellant filed the instant second appeal.

7. Before going to the merit of the instant second appeal, this Court have gone through with the substantial question of law framed earlier on 26.12.2016, wherein three substantial question of law were framed. Subsequently, in addition to these three substantial question of law which were framed on 26.12.2016 the appellant moved an application on 16.12.2019 i.e. IA 17085 of 2019, wherein the appellant proposed some more substantial question of law as elaborated in Para No.B i.e. Question No. e, f, g, h, i, j. On perusal of the question No.A framed earlier on 26.12.2016 and all these proposed substantial question of law as proposed by the appellant, this Court is of the view that all these substantial question of law as framed on 26.12.2016 as well as the proposed substantial question of law proposed by appellant on 16.12.2019 are either the question of fact or the question of argument, but not the question of law, and hence, the proposed substantial question of law is out rightly rejected.

8. In addition to this, after gone through with the substantial question No.A framed on 26.12.2016 this substantial question of law is in fact is not a question of law since the same is beyond the perview of the subject matter of the instant appeal which was arising out of the original suit filed by the present appellant wherein the counter claim was also filed by one of the defendant, therefore, substantial question of law A is deleted.

9. This Court is of the view, in addition to substantial question of law "B" and "C" framed on 26.12.2016, some more substantial question of law should be framed which are as under:-

i. Whether the principle of estoppel and the res-judicata will apply in the instant second appeal when no first appeal was preferred against the dismissal of the suit filed by the appellant/plaintiff in respect of the property admeasuring 320 sq ft leased out by lease deed dated 25.01.1993?

ii. Whether the first appeal was also included the judgment passed by the trial Court in the suit filed by the plaintiff particularly when the Court fee was paid on the valuation of the suit as well as on the valuation of counter-claim? iii. Whether an individual claim individual right over the property which owned by a charitable trust?

10. With the consent of learned counsel for the parties, the Court first will decide the last substantial question of law framed today, then proceed further.

11. Put up this matter on 14.05.2025 for further argument at 3:00 pm.

12. In the meantime, the interim order, passed earlier for maintaining the status quo at the spot, they will not change the nature of the property in any manner, whatsoever and shall not create any encumbrance on the property in question, is made absolute with the further direction that violation of this interim order amounts to a contempt.

13. The counsel for the appellant apprise to this Court that after passing of interim order dated 26.12.2016, a third party interest was created by respondents regarding which a Civil Contempt Petition No.329 of 2023 has been filed, in which the notices have been issued.

(Rakesh Thapliyal, J.) 07.05.2025 R.Bisht