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2014 DIGILAW 42 (UTT)

SUKH RAM v. VIDHYAVATI

2014-02-18

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J. 1. With the consent of learned counsel appearing for the parties, present petition is being taken up and is being disposed of finally at the admission stage. 2. Plaintiff appellant/petitioner herein filed civil suit before the Civil Judge, Vikas Nagar, being O.S. No. 102 of 2005, seeking permanent prohibitory injunction restraining the defendant/respondent No.1 herein not to make any interference in the possession of the plaintiff/petitioner herein. In a suit so filed, defendant/respondent No.1 herein preferred counter claim seeking possession from the plaintiff saying plaintiff is in the possession of the property as encroacher. Learned Trial Court, vide judgment and decree dated 20.01.2009, was pleased to dismiss the suit filed by the plaintiff/ petitioner herein seeking permanent prohibitory injunction. However, was further pleased to decree the counter claim preferred by the defendant/respondent No.1 herein directing the plaintiff/petitioner to hand over peaceful vacant possession to the defendant respondent No.1 herein. Feeling aggrieved plaintiff/petitioner herein preferred Civil Appeal No. 12 of 2009 in the Court of Additional District Judge, Vikas Nagar, District Dehradun. During the pendency of the appeal, defendant/respondent No.1 herein moved an application under Order 41 Rule 27 of the C.P.C. seeking permission to place on record certified copies of the judgment rendered by Criminal Court wherein plaintiff/appellant was held to be encroacher over the property in question. Application so moved under Order 41 Rule 27 of the C.P.C. by the defendant/respondent No.1 herein was allowed by the Appellant Court vide order dated 18.09.2013. While allowing the application so moved by the defendant respondents herein, learned Appellate Court has specifically observed that plaintiff/appellant/ petitioner herein would be at liberty to place on records evidence in rebuttal to the evidence permitted by the Appellate Court to be filed by the defendant/respondent No.1 herein. Plaintiff/appellant petitioner herein thereafter filed certain documents before the Appellate Court viz. allotment order, electricity bill, voter list, ration card and proceedings of dissolution of marriage. Defendant/respondent No.1 herein moved application 65C2 requesting the Appellate Court to reject the evidence so filed by the plaintiff/petitioner saying same are not in rebuttal to the evidence of the defendant/ respondent No.1. Learned Appellate Court, vide impugned order dated 16.01.2014, was pleased to allow the application and was pleased to reject the evidence produced by the appellant/petitioner herein. Defendant/respondent No.1 herein moved application 65C2 requesting the Appellate Court to reject the evidence so filed by the plaintiff/petitioner saying same are not in rebuttal to the evidence of the defendant/ respondent No.1. Learned Appellate Court, vide impugned order dated 16.01.2014, was pleased to allow the application and was pleased to reject the evidence produced by the appellant/petitioner herein. Feeling aggrieved, appellant/petitioner herein has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India by way of present petition. 3 3. I have heard Mr. Arvind Vashisth, learned counsel for the petitioner and Mr. Piyush Garg, learned counsel for the respondent No.1. 4. Undisputedly, plaintiff/petitioner filed suit for permanent prohibitory injunction restraining the defendant/respondent No.1 herein not to make any interference in the possession of the plaintiff/petitioner herein. Undisputedly, defendant/respondent No.1. herein preferred counter claim seeking possession of the property in question from the plaintiff/petitioner herein. It seems defendant/respondent No.1 herein had admitted possession of the plaintiff/petitioner over the property in question. Therefore, the only question involved in the suit was as to what was the nature of the possession of the plaintiff/petitioner. By way of producing judgments of the criminal courts, which were sought to be filed and permitted to be filed under Order 41 Rule 27 C.P.C, defendant/ respondent No.1 herein wanted to say that Criminal courts have found possession of the plaintiff/petitioner as encroacher while by way of documents sought to be filed by the plaintiff/ petitioner herein before the Appellate Court in rebuttal, the plaintiff/petitioner herein wanted to rebut the finding of the Criminal courts saying plaintiff/appellant was in fact entered into the possession as allottee of the land in question. In other words, plaintiff/petitioner by way of producing documents in question, wanted to prove nature of the possession to rebut the evidence of the criminal courts that plaintiff/ petitioner was in fact encroacher. 5. The observation of the Appellate Court that documents sought to be filed by the petitioner/appellant herein was not in rebuttal seems to be unjustified and totally wrong, especially, because plaintiff/petitioner has to establish nature of his possession. Therefore, order impugned does not sustain in the eyes of law. 6. Consequently, writ petition is allowed. Impugned order dated 16.01.2014 is set aside. Therefore, order impugned does not sustain in the eyes of law. 6. Consequently, writ petition is allowed. Impugned order dated 16.01.2014 is set aside. Documents filed by the plaintiff/appellant/petitioner herein before the appellate Court in rebuttal to the document/ evidence produced by the defendant/respondent No.1 herein shall be accepted on record. 7. CLMA No. 679 of 2014 and IA No. 604 of 2014 also stand disposed of accordingly.