Research › Search › Judgment

Uttarakhand High Court · body

2007 DIGILAW 256 (UTT)

Govind Ballabh Tiwari v. Vinod Krishna Tiwari

2007-05-10

B.C.KANDPAL

body2007
JUDGMENT Hon'ble B. C. Kandpal, J. : This Second Appeal has been preferred against the judgment and order/ decree dated 20.6.2002 passed by the District Judge, Nainital in Civil Appeal No. 27 of 2000, Govind Ballabh Tewari & another Vs. Vinod Krishna Tewari and ' others arising out of judgment and decree dated 27.06.2000 passed by Additional Civil Judge (S.D.), Nainital in Civil Suit No. 103 of 1994 between Pitamber Dutt Tiwari Vs Govind Ballabh Tewari & another. 2. Brief facts of the case are that a suit was filed by Pitamber Tiwari, father of respondents no. 1 to 5, against the defendants / appellants and the, Nagar Palika, respondent no. 6 for demolition of the disputed construction and injunction with the allegations that Pitambar Dutt Tewari, original plaintiff, was the owner of the house and land in question shown in the plaint map by letters 'A 'B' 'C' and 'D' situated in Stone Leigh Compound Nainital, which he purchased from one Safdar Ali Khan vide registered sale-deed, dated 5.1.1982. Even from the period prior to purchase the plaintiff was in possession of the house as a tenant in the house purchased by him. The house and land purchased by the plaintiff is surrounded by 6 feet wide Rasta land. The defendants-appellants have purchased a plot adjoining to that of the plaintiff but they have encroached upon the land shown in the plaint map near northern corner of the house of the plaintiff in the area measuring 20' 6" x 8' 6" and thereby they have also obstructed the 6 feet wide road on the northern side of the plaintiff's house. It is alleged in the plaint that the encroachment was made on 15.5.1994 by the defendants / appellants and even after being asked they did not stop it, hence the• suit for demolition of the disputed construction and injunction to restrain the defendants was instituted by the plaintiffs. 3. Defendants no. 1 and 2 contested the suit and filed their joint written statement in which they denied the plaint case. Defendant no. 3 filed its separate written statement and have not admitted the allegations of the plaint for want of the knowledge. However, they have admitted that none including defendants no. 1 and 2 have any right to encroach upon the public path and to that extent plaintiff is entitled to injunction against the defendants no. 1 and 2. Defendant no. 3 filed its separate written statement and have not admitted the allegations of the plaint for want of the knowledge. However, they have admitted that none including defendants no. 1 and 2 have any right to encroach upon the public path and to that extent plaintiff is entitled to injunction against the defendants no. 1 and 2. 4. The learned Trial Court, on the basis of pleadings of the parties, framed following issues: (i) Whether the width of the plaintiffs' plot is 117 feet and, not 94 feet as alleged in the plaint? (ii) Whether measurements given in the registered sale-deed executed in favour of the plaintiff and those given in the plaint map are wrong? (iii) Whether plaintiff is the owner of the disputed part of the land? (iv) Whether the suit is undervalued and court-fee paid is insufficient? (v) To what relief, if any, the plaintiffs are entitled? (vi) Whether the defendants have encroached upon the 6 feet rasta land and over the land measuring 8' 6" x 20' 6" ? If so, its effect? (vii) Whether the defendants are bent on to encroach upon the 6' x. 20' 6" land as alleged in para 6 of the plaint? If so, its effect? 5. The learned trial Court decided issue no. 4 in negative as a preliminary issue vide judgment and decree dated 7.4.1997 and after recording evidence of the parties and hearing them, decreed the suit for removal of the disputed constructions raised by the defendants. Aggrieved by the same, defendants no. 1 and 2 have preferred the appeal before the lower Appellate Court. 6. The learned Lower Appellate Court vide judgment and order dated 20.6.2002 partly allowed the appeal and set aside the impugned judgment and decree dated 27.06.2000 passed by the trial Court. The Lower Appellate Court, however, maintained the decree passed ,by the learned trial Court in respect of 6 feet Rasta land adjoining to the plaintiffs' plot at the northern corner 'A' of the house. The defendants, thereafter, preferred the Second Appeal before this court and this court while admitting the Appeal framed the following substantial question of law : "Whether the trial Court as well as appellate Court fell into error in not framing any issue on the pleadings of the defendants that the suit was not maintainable and thereby not deciding the point raised in this regard?" 7. Heard Sri B.D. Upadhyay, learned counsel for the appellant, Sri Sarvesh Agarwal, learned counsel for the respondents, Sri D.S. Patni, learned counsel for the respondent No. 6 and perused the record. 8. The record reveals that the case of the appellants/defendants is that actually the width of the 'land of the plaintiffs was 94 feet and not 114 feet as shown in the plaint map. It was also pleaded by the defendants/appellants before the court below by way of written statement that the plaintiffs are not owners of the land in dispute. It was also pleaded by the defendants/appellants before the court below that they have raised construction after getting the map sanctioned from the concerned authorities. The defendants/appellants also denied the encroachment upon any 'Rasta' over the disputed land, The defendants/ appellants also took the additional plea stating therein that the plaintiffs/respondents have no right whatsoever on the disputed part of the land. 9. Having gone through the judgments passed by both the courts below, I come to the conclusion that neither the trial Court nor the lower Appellate Court decided any issue on the pleadings adduced by the defendants/appellants. No issue has also been framed by the trial court in this regard and the lower Appellate Court has also not gone into this aspect of the matter as to whether the evidence and the pleadings adduced by the defendants/appellants was considered or not. The record further reveals that the defendants/appellants have pleaded that the suit was not maintainable and neither the trial court has framed any issue nor the lower appellate court has gone into this aspect of the matter. 10. In light of the aforesaid discussion, I do not have any other option except to remand the matter to the trial court for framing relevant issue on the pleadings adduced by the defendants/ appellants and deciding the same on the basis of material evidence available on the record. It is also directed that the parties have already adduced the evidence in support of their case and they shall not adduce any further evidence in the case before the court below. The trial court is directed to frame relevant issues and decide the same without inviting any further evidence from the parties. 11. In view of the above discussion, the substantial question of law is decided in favour of the appellants. The trial court is directed to frame relevant issues and decide the same without inviting any further evidence from the parties. 11. In view of the above discussion, the substantial question of law is decided in favour of the appellants. The judgment and decree passed by both the courts below are set aside. The matter is remanded back with the direction that the trial Court shall frame the relevant issues on the pleadings adduced by the parties and thereafter shall decide the matter on the basis of material evidence available on the record. 12. With the aforesaid observations, the Appeal is allowed.