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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
SHARAD KUMAR SHARMA, J.
Bhagwan Singh alias Bhagwanu - Appellant
Versus
Balma Bhandari - Respondents
Second Appeal No. 53 of 2022
Decided on : 08-06-2022
Property Dispute - U.P. ZA and LR Act - Section 209, Section 210, Section 331
Fact of the Case:
The plaintiff claimed bhumidhari rights over a non-ZA land and sought demolition of a construction and a permanent injunction. The defendant contested the suit, but did not raise the issue of the suit's maintainability based on U.P. ZA and LR Act. The Trial Court decreed the suit, and the defendant appealed.
Finding of the Court:
The Court dismissed the appeal, stating that the defendant's failure to raise the issue of the suit's maintainability earlier barred them from doing so at the appellate stage.
Issues: The issues included the property dispute, construction demolition, and injunction. The Court also considered the impact of Sections 209 and 331 of the U.P. ZA and LR Act.
Ratio Decidendi: The Court held that the defendant's failure to raise the issue of suit's maintainability earlier prevented them from doing so at the appellate stage. The Court also found that the impact of Sections 209 and 331 of the U.P. ZA and LR Act could not be raised for the first time at the second appellate stage.
Final Decision: The Second Appeal lacked merit and was dismissed.
JUDGMENT :
In relation to a property more aptly described in the plaint, which was said to be lying in Khata No. 293, with regard to the revenue entries recorded in 1417 to 1422 fasli. The plaintiff has contended, that the plaintiff has got a bhumidhari rights over Khasra No. 5040, lying in village Chilyali, Tehsil Chilyalishod, District Uttarkashi, which was a non-ZA land.
2. According to the Khatuni Khata No. 85, which relates to khasra No. 4842/2, over which, there existed a construction, as described in the plaint map by figure EFGH & ABCD. It was contended that the same may be demolished and the possession, status quo ante may be maintained.
3. Further a degree of permanent injunction, was sought directing the defendant, to be injuncted from their act of wrongful interference over the property lying in khasra No. 5040 and the construction, which has been existing on it. Later on, the relief was amended by incorporation of relief made by virtue of an amendment carried on 28th August, 2014. The relief as sought in the plaint, which was instituted on 23rd May, 2012, is extracted hereunder :-
¼d½ vuqns'kkRed fu”ks/kkKk dh fMØh bl vejdks ikfjr dh tk; fd izfroknh }kjk xzke&fpUkyh] rg&fpUkyh] ftyk&mŸkjdk'kh dks mngj.k [krkSuh [kkrk la[;k 293] Qlyh&1417 ls 1422 es ntZ okfnuh dh Hkwfe/kjh Hkwfe ds [kljk la[;k&5040 o xzke fpU;kyh] rg½ fpU;kyhlkSM+] ftyk&mŸkjdk'kh ds ukWutsM, [krkSuh [kkrk la[;k&85 es ntZ [kljk la[;k&4842@2 ij fd;s x;s fuekZ.k ftUgs utjh uD'kk izf'k"V ds esa Øe'k% v{kj b] ,Q] th] ,p] p ,] ch] lh] Mh v{kjksa ls f?kjk iznf'kZr fd;k x;k gSA dks U;k;ky; }kjk fu/kkZfjr vof/k ds varZxr /oLr dj okfnuh dh Hkwfe dh fLFkfr dks iwoZ fLFkfr esa dj nsosa o ;fn izfroknh ,slk ugha djrk gS rks izfroknh ds O;; ij U;k;ky; dh ,astsalh }kjk mDr fuekZ.k dks /oLr dj okfnuh dh Hkwfe dks iwoZ fLFkfr es dj fn;k tk;A vkSj izfroknh }kjk nkoh Hkwfe ftls nkos ds lkFk is'k utjh uD'kk ifjf'k”V ^d^ es v{kj b,Qth,p o ,chlhMh v{kjksa ls f?kjk iznf’kZr fd;k x;k gS dk dCtk okfnuh dks fnyk;k tk,A
¼3½ LFkkbZ fu”ks/kkKk dh fMØh izfroknh ds fo:) bl vejdks ikfjr fd;k tk; fd izfroknh }kjk okfnuksa ds fefYd;r ds [kljk la[;k&5040 ij fuekZ.kk/khu Hkou ftls utjh uD'kk izf'k"V d es v{kj b],Q]th],p o ihyh jks'kukbZ ls iznf'kZr fd;k x;k gS] ij fuekZ.k dk;Z djus ls o mDr [kljk uEcj ds cps fgLlk Hkkx ij dk'r djus ls o [kljk la[;k 4842@2 ij fdlh Hkh izdkj ls dk'r djus] dCtk djus o Hkfo"; es fdlh Hkh izdkj ds fuekZ.k djus ls Lo;a vFkok vius ifjokjtuksa] ,stsaVks etnwjks vkfn ds }kjk fdlh Hkh izdkj dh n[kyankth] /kk/kyckth fuekZ.k djus o dCtk djus ls lnkdky d fy;s ckt jgsA
¼x½ [kpkZ eqdnek o vU; vuqrks”k tks U;k;ky; Jheku equkflQ le>s dh fMDdhA
4. The proceedings of the Suit was contested by the defendant/appellant, herein, by filing a written statement, wherein, various contentions have been raised, except for the contention pertaining to the sustainability of the proceedings of the Suit, in view of the bar created by Section 209 to be read with Section 210 of the U.P. ZA and LR Act, as well as the bar which was alleged to be created by Section 331 of the U.P. Z.A. & L.R. Act, nor it was a case, which was ever pleaded in the written statement.
5. Be it so. Whatsoever, the pleadings have been raised before the learned Trial Court, the learned Trial Court had framed the following issues:-
^^1& D;k okfnuh [kljk la0&5040 jDok 0-016 gS0 dh Hkwfe/kj] ekfyd] dkfct gS \ ;fn gka rks izHkko \
2& D;k okfnuh dks [kljk la0&4842@2 jDok 0-005 gS0 lu~ 1996 iV~Vs ij Lohd`r gqbZ \
3& D;k izfroknh us [kljk la0&5040 rFkk 4842@2 ij voS/k vfrØe.k dj Hkou fuekZ.k fd;k \
4& vuqrks"k\^^
6. This Court feels it necessary to observe at this juncture itself, that even at the stage of formulation of the issue, the wisdom, which the defendant had, they did not pray to invoke Order 14 Rule 3 and 4 of the CPC, for getting an additional issue framed pertaining to the maintainability of the proceedings of the Suit and rather has proceeded to contest the Suit based on the issues, which were framed by the Trial C
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