HIGH COURT OF UTTARANKHAND AT NAINITAL SECOND APPEAL NO. 53/2004 Smt. Dropadi Devi @ Durgali Devi @ Durga Devi and others ….. Defendants-Appellants Vs. Nain Singh and others …Plaintiffs –Respondents 2.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri Raman Kumar Shah, counsel for the appellants and none for the respondents. 2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 5.5.2004 passed by the District Judge, Bageshwar in civil appeal No. 7 of 2003. 3. Second appeal was admitted on the following substantial questions of law:- “1. Whether the suit is barred by Section 331 of U.P.Z.A. and L.R. Act? 2.Whether the injunction can be granted in favour of co-owner against the co-owner of the land in dispute? 2 3. Whether the appellate court can direct to amend the plaint and written statement at appellate stage or can sit over the appeal as a advisory manner? 4. Whether the findings recorded by lower appellate court are against the weight of evidence on records? 5. Whether the findings recorded by lower appellate court are based on assumptions, not supported by any evidence? 6. Whether the findings of appellate court below are based on misleading and misinterpretation of the evidence on record? 7. Whether the appellate court below erred in law in appreciating the findings recorded by learned trial court in its judgment? 8. Whether the appellate court below has committed grave error of law by stretching its conclusion beyond the truth without plugged into the document and evidences on record? 4. Briefly stated, a suit being suit no. 73 of 1991 was filed praying for permanent injunction restraining the defendants from interfering with the land mentioned in the plaint. According to the plaintiff, the forefather of the defendants namely Kehsar Singh has sold the half of the land of khet no. 869 (presently khet nos. 2124, 2125, 2126) and total land of khet no. 523 (presently 4035 to 4043) situate at village Mantoli to the plaintiff and handed over the possession of the same vide registered sale deed no. 3 12.12.1960 and since then the plaintiff is in possession of the said land. Half of the land of old paimaish no. 869 is in possession of Ratan Singh, brother of the Keshar Singh. Khet nos. 572 to 577, 579, 581, 584, 586, 588 to 590 are also in the ownership and in the possession of the plaintiff. It has been stated that the defendants have destroyed the paddy crops sown by the plaintiff on the aforesaid plots, hence, the present suit has been filed for restraining the defendants from interfering with the peaceful possession of the plaintiff over the land in dispute and restraining the defendants from destroying the crops of the plaintiff. 5. A written statement has been filed by the defendants stating therein that the plaintiff has no concerned over the land in dispute. The disputed property is joint property of the defendants and other tenure holders. In paragraph nos. 3 and 4 of the written statement, it has been stated as under: “3- fd oknh us ;fn dksbZ c;ukek fdlh Hkwfe dk ds’kjflag ls djok;k Hkh tks tSlk fd og vius okni= esa dg jgk gS rks Hkh latk;rh [kkrs esa u rks fdlh [kkl [ksr dk c;ukek gks ldrk Fkk u fcuk CkVokjk [kkrsnkjku ds chp gq;s mls dksbZ [kkl dCtk gh izkIr gks ldrk Fkk A fof/k vuqlkj ,slk c;ukek Hkh uktk;t gS A oknh us vius nkos esa fdlh [kk;dkjh c;ukes dk ftdz fd;k gS tcfd fookfnr Hkwfe latk;rh Hkwfe/kjku dh [kkrs dh gS A 4- fd oknh ;fn fdlh rjg ij vius vki dks fookfnr Hkwfe okys [kkrksa esa gdnkj ekurk gS rks Hkh dCtk izkIr djus ds fy;s mls CkVokjs dk okn izLrqr djuk gksxk u fd fu"ks/kkKk dk okn AÞ 4 6. On the pleadings of the parties, the trial court has framed the following issues:- “1.D;k oknxzLr Hkwfe oknh ds rugk LokfeRo o dCts dh Hkwfe gS ftlesa izfroknhx.k dks dksbZ vf/kdkj izkIr ugha gS\ 2- D;k izfroknhx.k us oknh ds dCts o dk’r dh oknxzLr Hkwfe esa vukf/kd`r gLr{ksi fd;k gS\ 3- D;k flfoy U;k;ky; dh okn Jo.k dh vf/kdkfjrk ugha gS\ 4- D;k oknh dks izfroknh x.k ds fo:) okn izLrqr djus dk vf/kdkj ugha gS\ 5- oknh fdl vuqrks"k dks izkIr djus dk vf/kdkjh gS\ 7. Towards the oral evidence, the plaintiff has examined P.W.1 Nain Singh and P.W.2 Karam Singh. The defendants have examined D.W.1 Balwant Singh and D.W.2 Dan Singh. Towards the documentary evidence, the plaintiff has produced Ex. 1 to Ex. 5. 8. While deciding as to whether the plaintiff is owner in possession of the property in dispute and the defendants have no concern with the same, the trial court has recorded the finding that the plaintiff is not the owner in possession of the land in dispute and the defendants are the owners in possession over the property in dispute. 9. While deciding as to whether the defendants have unauthorisedly interfered with the possession of the plaintiff, the trial court has decided the issue against the plaintiff. 5 10. While deciding with regard to the jurisdiction of court to try the present suit, the trial court has come to the conclusion that the court has no jurisdiction to try the suit. The trial court has recorded the finding to the following effect:- “izfroknhx.k ds fo}ku vf/koDrk dk ;g rdZ Lohdkj fd;s tkus ;ksX; gS fd oknh dks jktLo U;k;ky; ls ?kks"k.kk djkuh pkfg;s Fkh A LoxhZ; ds’kj flag ds uke jktLo vfHkys[kksa esa Hkwfe izfo"V ugha gS vkSj u gh oknh ds uke og Hkwfe ntZ gS tks LoxhZ; ds’kj flag ls iathd`r cSukes }kjk varfjr gksuh crk;h x;h gS A vr% flfoy U;k;ky; dks okn Jo.k dh fo"kf;d vf/kdkfjrk izkIr ugha gS A” 11. On the basis of the aforesaid, the trial court has dismissed the suit. 12. Aggrieved by the judgment passed by the trial court, the plaintiff went in appeal. The appellate court has allowed the appeal and remanded the matter to the trial court with the following observations:- “cgl ds nkSjku oknh@vihykFkhZ ds fo}ku vf/koDrk }kjk ;g dgk x;k fd fu’p; gh mudh rjQ ls fookfnr Hkwfe dk lgh fooj.k izLrqr u djds xyrh dh xbZ gS vkSj mUgksaus dgk fd mUgas ,slk fooj.k nsus ds fy, le; ns fn;k tk; A izR;FkhZx.k ds fo}ku vf/koDrk us Hkh ;g dgk fd os Hkh fookfnr Hkwfe ds ckjs esa viuk vf/kd Li"Vhdj.k izLrqr djsaxs vkSj nksuks i{kksa }kjk ;g dgk x;k fd bl okn dks fo}ku voj U;k;ky; ds le{k iqu% fu.kZ; ds fy, fjek.M dj fn;k tk; vkSj fo}ku voj U;k;ky; dks ;g funsZ’k ns fn;s tkosa fd os Ik{kksa dks vius 6 vfHkopuksas esa la’kks/ku djus dk ,d ekSdk nsdj okn dk iqu% fuLrkj.k djsa A mijksDr ifjfLFkfr;ksa esa Lohdk;Z :Ik ls Ik{kksa us vius vfHkopuksa esa fookfnr laifRr ds laca/k esa Li"Vr% ugha n’kkZ;k gS vkSj u gh fookfnr laifRr dk uD’kk yxk;k gS] ftlds vHkko esa fdlh Hkh Bksl fu"d"kZ ij igqWapk tkuk dfBu gS A vr% bu ifjfLFkfr;ksa esa Ik{kksa dh lgefr ls bl okn dks iqu% fu.kZ; gsrq fo}ku voj U;k;ky; ds le{k Hkstk tkuk gh ,dek= fodYi gSA” 13. As will appear from the aforesaid judgment and decree passed by the appellate court that the appeal has been remanded to the trial court on the ground that the plaintiff has not furnished the details of the land for which injunction has been sought. 14. In view of the aforesaid, I do not find any ground to interfere with the judgment passed by the lower appellate court in the present second appeal. No substantial questions of law, therefore, arises so as to interfere with the impugned order and the second appeal, therefore, is liable to be dismissed being devoid of merits. 15. Consequently, appeal is dismissed. No order as to costs. (Rajesh Tandon, J. ) 2.4.2008 Avneet