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IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

SRI JUSTICE RAKESH THAPLIYAL, J.

August 23, 2023

Appeal from Order No. 274 of 2009

Between:

Gurucharan Singh

……..Appellant/Plaintiff

And

Manoj Kumar and others

...............Respondents

Counsel for the appellant: Mr. Narendra Bali, counsel for the appellant.

Counsel for the respondent: Mr. Nikhil Singhal, counsel for the respondents

Upon hearing the learned counsel for the parties, the Court made the following

JUDGMENT:

1.

The present appeal is preferred against the

judgement and order dated 06.07.2009, passed by

the learned Civil Judge (S/D)/1^st FTC, Haridwar, in

Original Suit No. 75 of 2006, Gurucharan Vs.

Manoj, whereby the learned Civil Judge (S/D)/1^st

FTC, Haridwar, directed the appellant to pay Court

Fees as per Section 7(a) of the Court Fees Act,

1870, for seeking relief of taking possession over

the property in dispute.

2.

Heard learned counsel for the parties and perused

the record.

3.

The brief facts, giving rise to the present Appeal are

that the plaintiff/appellant instituted a Original

Suit No. 75 of 2006, before the learned Civil Judge

(S/D)/1^st FTC, Haridwar, wherein a relief was

sought in the nature of mandatory injunction

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against the defendant nos. 1 to 3, who are the

respondents herein, for restraining them from

interfering in his possession and remove the

unauthorized constructions from the property in

question and handover the possession to the

plaintiff.

4.

I have perused the Original Suit No. 75 of 2006,

wherein the following reliefs were sought, the

extract of which is being reproduced as under:

“v- ारा िडकी ाई िनषेधाा बहक वादी बरखलाफ प्रितवादी न० 1 ता 3 इस आशय से

सादर फरमाई जावे िक प्रितवादीगण न 1 ता 3 सि िनविणत म वादी के का का

प्रयोग, उपभाग म कोई हेप ना कर, ना करावे

ब- यह िक िडकी मेेटरी इनजंन बहक वादी बरखलाफ प्रितवादीगण इस आशय से

सािदर फरमाई जाय िक प्रितवादीगण अंदर िमयाद अदालत वादग्र सि से अनािधकृत

िनमाण / मलबा हटाकर सि का का वादी को सौंप द।

स- अ सहायता जो राय अदालत मुनािसब समझे वादी को प्रितवादीगण से िदलाया जावे।

n- हजा खचा वादी को प्रितवादीगण न० 1 ता 3 से िदलाया जावे”

5.

It is pleaded in the plaint that earlier the owner of

the property in question was one Charandas S/o

Parmanand, whose name was entered into the

revenue records and thereafter, in place of

Charandas, the name of his son Ramakant was

entered, and Ramakant gave a power of attorney to

one Shri Sukhdev Singh S/o Charan Singh, R/o

Vikas Colony BHEL, Ranipur, District Haridwar,

and on this Power of Attorney the rights were given

to Sukhdev Singh on the property, the observation

of which, is enclosed in the plaint disclosed in the

Map (Naksha Nazari) marked as ‘A’, ‘B’, ‘C” and ‘D’.

It is further pleaded in the plaint that Sukhdev

Singh, the Power of Attorney holder executed a

lease-deed in favour of the plaintiff and one

Surendra

Singh

and

since

06.04.2002,

the

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plaintiffs are in possession. It is further pleaded in

the plaint that the defendant nos. 1 to 3 have no

concern with the property in question and neither

they are owner nor are in possession. It is further

pleaded in the plaint that a boundary wall was

constructed over the property, which was leased

out on 06.04.2002, however, the defendants are

intended to take the possession over the property in

question. It is further pleaded in para 8 of the

plaint that on 14.02.2006, the defendant no. 1 to 3

came with common intention to take possession

but could not succeed to get possession, however,

they threatened to take possession over the

property in question anyhow.

6.

After institution of the aforesaid suit, an application

was moved under Order 6 Rule 17 Read with

Section 151 of the Code of Civil Procedure, 1908,

by the plaintiff in the aforesaid Suit for seeking the

amendment to the plaint with this statement of fact

t