SA/71/2025
2025 Latest Caselaw 4581 UK

Uttarakhand High Court

SA/71/2025 on 23 September, 2025

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

             Office Notes, reports,
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                                      SA No. 71 of 2024
                                      Hon'ble Rakesh Thapliyal, J.

1. Mr. Chandramauli Sah, learned counsel for the appellant.

2. The instant second appeal was filed with delay condonation application and the delay condonation application is already allowed and delay in filing the appeal condoned and now, it is listed for admission.

3. The instant second has been preferred against the judgment and decree dated 27.07.2022 passed by Civil Judge, (SD), Almora, in Civil Suit No. 19 of 2016 (Kailash Chandra Shah and another Vs. Nandan Singh Negi) decreeing the suit for mandatory injunction as well as against the judgment and order dated 18.03.2025 dismissing Civil Appeal No. 06 of 2022 by Addl. District Judge, Ranikhet, District Almora.

4. Learned counsel for the appellants submits that in fact, the construction in respect of suit property was constructed in the year 2000 but the suit was filed in the year 2016 and a specific plea was taken that the suit is barred by limitation. Apart from this, he submits that whatever be the construction was raised by the defendant / appellant was in his own property and not in the property of the plaintiffs / respondents. He further submits though there are concurrent findings of the fact but in the Civil Appeal, an application was moved for survey commission under Order 26 Rule 9 CPC but without deciding the same, the appeal was dismissed.

5. Mr. Rajendra Arya, learned counsel, holding brief of Mr. Neeraj Garg, learned counsel, accepts notice on behalf of the respondents.

6. Admit the second appeal on the following substantial questions of law:

"a. Whether the suit was barred by limitation? b. Whether the first Appellate Court was right in not deciding the application moved for survey commission under Order 26 Rule 9 CPC to ascertain encroachment over the property, in question?"

7. Trial court record are summoned.

8. List after receiving of the trial court record.

9. Till the next date of listing, execution proceeding shall remain stayed.

(Rakesh Thapliyal, J.) 23.09.2025 SKS