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2019 Supreme(UK) 204
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SHARAD KUMAR SHARMA, J.
Devkinandan Bhatt & Another - Appellants
Versus
Smt. Krishna Tiwari & Others - Respondents
Second Appeal No. 123 of 2018
Decided On : 26-02-2019
Advocate Appeared:
For the appellants :Mr. Neeraj Garg, Advocate
For the caveators :Mrs. Menka Tripathi, Advocate
Headnote:
The court held that the defendant had encroached upon the land of the plaintiff and decreed the suit in favor of the plaintiff. The defendant appealed against the judgment and decree. The appellate court partly allowed the appeal and remanded the matter to the trial court for a fresh determination of the extent of encroachment. The trial court, after conducting a fresh survey, decreed the suit in favor of the plaintiff. The defendant again appealed against the judgment and decree. The second appellate court dismissed the appeal. The defendant filed a second appeal before the Supreme Court.
Fact of the Case:
The plaintiff filed a suit for permanent prohibitory injunction, as well as, for the amended relief of mandatory injunction, as later sought by the plaintiff by way of amendment has been allowed and the Suit was decreed in favour of the plaintiff (respondent herein) by both the courts below concurrently.
Finding of the Court:
The court held that the defendant had encroached upon the land of the plaintiff and decreed the suit in favor of the plaintiff.
Issues: 1. Whether the learned District Judge, Nainital was justified in passing order of remand dated 02.04.2010 without reversing the findings of learned trial court and fulfilling the conditions for remand under order 41 rule 23, 23a and 25 CPC that too without framing and deciding points for determination under order 41 rule 31 CPC which vitiated the all subsequent proceedings. 2. Whether evidence of power of attorney holder of plaintiff Sri Satish Chandra Pant was admissible as regards facts in the knowledge of principal, not performed under the strength of power of attorney, in view of judgement of Hon’ble Supreme Court of India in case of S. Kesri Hanuma Joud Vs. Anjum Jehan & others, 2013(12) SCC, page 64, Man Kaur Vs. Hartar Singh Sanga, 2010 (10) SCC, page 512 and Janki Vshdeo Bhojwani Vs. Indusind Bank Ltd., 2005 (2) page 217. 3. Whether in absence of proof of due execution and contents of basis of the suit viz. sale deed dated 15.03.1986 by plaintiff, the suit for mandatory injunction could have been decreed in favour of plaintiff ignoring section 90A, 68 of the Evidence Act. 4. Whether the relief of mandatory injunction as regards leaving setback while raising construction as per bylaws of development authority was barred under section 41(h) of Specific Relief Act on the ground of efficacious remedy under section 16,27 & 28 of Uttar Pradesh Urban Planning and Development Act, 1973. (E) Whether relief of mandatory injunction sought by plaintiff for removing construction during pendency of suit was barred in view of section 41(g) of Specific Relief Act 1963. (F) Whether judgement and decree passed by the lower Appellate Court without stating and rendering its decision on points for determination following the mandate of Order 41 Rule 31 Cr.P.C., is vitiated and is a judgement within the meaning of section 2(9) C.P.C. and decree within the meaning of section 2 (2) C.P.C. (G) Whether in the absence of partition by decree of court or by meets and bounds between plaintiff and co-owner Smt. Asha Pant, suit as regards possession over specific portion was maintainable that too when the description of property was vague and incomplete.
Ratio Decidendi: The court held that the defendant had encroached upon the land of the plaintiff and decreed the suit in favor of the plaintiff.
Final Decision: The second appellate court dismissed the appeal.
1. This is a defendants’ Second Appeal, wherein they have challenged the judgment and decree dated 13.09.2018, as passed by the 2nd Additional District Judge, Nainital in Civil Appeal No. 15 of 2013, Ganesh Bhatt & Others Vs. Smt. Krishna Tiwari, consequent thereto affirming the judgement and decree dated 30.03.2013, as rendered by the Civil Judge (Junior Division), Nainital in Original Suit No. 54 of 1997, Smt. Krishna Tiwari (since deceased) now represented through LR Vs. Revadhar Bhatt (since deceased) now represented through LR & Others. Consequent thereto, the Suit for permanent prohibitory injunction, as well as, for the amended relief of mandatory injunction, as later sought by the plaintiff by way of amendment has been allowed and the Suit was decreed in favour of the plaintiff (respondent herein) by both the courts below concurrently.
2. Before venturing into the intricacies, as argued by the learned counsel for the appellants as well as for the caveator-respondent, it becomes essential to consider the basic factual aspects which are involved in the present second appeal in question.
3. Based on the cause of action, which has been pleaded by the plaintiff-respondent to have accrued on 18.05.1997 is shown to have instituted a Suit on 29.05.1997, initially praying for the following reliefs:-
“It is, therefore, prayed that the plaintiff may kindly be granted a decree for: (a) Perpetual injunction in favour of the plaintiff restraining the defendants, their predecessors of successors-in-interest and any other under their direction, from interfering in the peaceful enjoyment of plaintiff’s property in the plot No. 7-B in Vernon Cottage, Tallital, Nainital and/or grabbing any part of it, as shown with red colour in the annexed map of the plaint; and
(b) Mandatory injunction directing the defendants in leaving a side – back of 1.5 metre from the side of plaintiff’s part of plot No. 7-B in Vernon Cottage, Tallital, Nainital as per the Rules Building Registration 552 of Nainital Lake River Special Area Development Authority; and remove encroachment of 256.6 sq. feet from plaintiff part of his plot (as amended on 15.04.2000).
(c) Costs of the suit.”
4. The subject matter of the Suit in question was the property, which was, more particularly, described as Plot No. 7-B lying in the northern half portion in Vernon Cottage, Tallital, Nainital (hereinafter to be referred as “the property”) in the plaint, and the other southern half portion which is purchased and owned by Smt. Asha Pant having purchased from predecessor owner Mrs. Uma Joshi.
5. The plaintiff-respondent in the Suit had come up with the case that the property bearing Municipal no. 7-B of Vernon Cottage was initially owned by Smt. Uma Joshi, who had earlier purchased property by virtue of sale deed dated 15.03.1986, who executed the sale deeds of the southern part in favour of one Smt. Asha Pant, and for the other part of the same property lying (on the northern side), the sale deed which shows chaunhadi of plot purchased by plaintiff was executed in favour of the plaintiff-respondent. Over the plots, thus purchased by the plaintiff-respondent and Smt. Asha Pant having a total area of 2940 sq. ft. there exists construction of the plaintiff-respondent and that of Smt. Asha Pant, the other co-purchaser which has been raised by the respective purchasers of the land after due sanction by the Lake Development Authority which was placed on record and as revealed as from paper no. 10x. In fact the predecessor owner/seller of plaintiff had never objected the title claimed by the plaintiff and the construction being made by them. The plaintiff in order to fortify the fact about area purchased has also placed on record map 25 x/1 which was part of sale deed of the plaintiff which demarcates the property sold by figure A B C D E F G. The plaintiff had also placed on record the recent map sanctioned by Lake Development Authority and as well an Affidavit paper no. 80 d 14
