Uttarakhand High Court
SA/114/2024 on 6 October, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
SA No. 142 of 2022
Hon'ble Rakesh Thapliyal, J.
1. Mr. Arvind Vashistha, learned senior counsel
assisted by Mr. Hemant Singh Mahra, learned counsel for
the appellant.
2. Mr. Siddhartha Singh, learned counsel for the
respondent.
3. The respondent/plaintiff preferred an Original Suit
No. 82 of 2014 for mandatory injunction as well as the
possession in which the defendant/appellant filed the
counter claim and both the suit as well as the counter
claim was rejected by the learned Civil Judge (J.D.),
Haridwar, by judgment and order dated 02.02.2021.
Against the dismissal of suit a Civil Appeal No. 06 of
2021 was filed by the plaintiff, which was allowed and
the suit was decreed and now being aggrieved the instant
second appeal has been preferred by the
appellant/defendant of O.S. No. 82 of 2014.
4. In the meantime, during the pendency of the
instant appeal the present appellant, who was the
defendant in O.S. No. 82 of 2014, also preferred a time
barred civil appeal against the judgment and order dated
02.02.2021 passed in O.S. No. 82 of 2014, whereby, the
counter claim of the defendant was rejected and since the
civil appeal as time barred by 626 days the same was
registered as Miscellaneous Case No. 203 of 2022. This
time barred civil appeal was filed on 21.11.2022.
5. The time barred civil appeal, which was registered
as Miscellaneous Case No. 203 of 2022 was subsequently
dismissed by the learned District Judge by the judgment
and order dated 15.09.2023 on the ground that the delay
in preferring the appeal is not bonafide and only in order
to fill up the lacuna the time barred civil appeal has been
preferred. Being aggrieved with the order dated
15.09.2023 passed in Miscellaneous Case No. 203 of 2022
the appellant/defendant also preferred a second appeal,
which is also listed bearing Second Appeal No. 114 of
2024.
6. So far as the instant second appeal is concerned,
admittedly, earlier the suit was dismissed by the Trial
Court on 02.02.2021, however, the First Appellate Court
set aside the judgment and decree passed by the Trial
Court by decreeing the suit. The relief as sought by the
plaintiff in the suit is based upon the Will dated
25.05.1995 and in the counter claim the defendant claimed
the right over the land in question on the basis of adverse
possession. No doubt the Trial Court dismissed the suit
as well as the counter claim, however, First Appellate
Court decreed the suit.
7. Now, taking into consideration that there is non
concurrent finding of fact particularly when the suit was
dismissed but the First Appellate Court decreed the suit,
this court is of the view that the matter requires deep
scrutiny and particularly to examine whether any such
right is accrued in favour of the plaintiff over the
property in question on the basis of Will dated 25.05.1995.
8. Accordingly, the instant second appeal is admitted
on the following substantial question of law:
i. Whether the plaintiff had inducted the
defendant/appellant as licensee and whether he had
any right to terminate appellants alleged license?
ii. Whether the plaintiff has discharged his burden of
proving the will dated 25.05.1995 which was
produced for the first time in the suit filed after
expiry of almost 20 years, beyond all reasonable
suspicion?
iii. Whether the provisions of Order XLI Rule 31 has
been complied with by the First Appellate Court
while deciding the Civil Appeal No. 06 of 2021?
9. Record of Trial Court, First Appellate Court as well
as the record of Miscellaneous Case No. 203 of 2022 are
summoned and the Registry is directed to send the
requisition in this regard and after receiving the record
the Registry is also directed to prepare the paper book
and supply the same to the learned counsel for the parties
on payment of usual charges.
10. Put up this matter for final disposal on 25.11.2025.
11. In the meantime, the execution proceedings shall
remain stayed with the further direction that the parties
shall not create any third party interest over the property
in question.
(Rakesh Thapliyal, J.)
06.10.2025
PR
