VIVEK PATHAK Vs. VIVEK PATHAK

JUDGEMENT

(1.) Instant appeal is preferred against the Judgment and Order dtd. 15/12/2020, passed in Civil Appeal No.14 of 2018, Nangu (dead) through LRs vs. Smt. Neena Pathak and others, by the court of District Judge, Nainital (for short, "the appeal"). By it, the Judgment and Order dtd. 5/2/2018, passed in Civil Suit No.97 of 2010, Yagya Prakash Pathak (dead) through LRs vs. Nangu (for short, "the suit"), passed by the court of Civil Judge (Sr. Div.), Haldwani, District Nainital has been set aside. By the Judgment and Order dtd. 5/2/2018, passed in the case, the suit filed by the appellant for permanent injunction has been decreed.

(2.) Facts necessary to appreciate the controversy briefly stated are that the appellants and others filed the suit for permanent injunction with regard to property plot no.199, 200, 201, 202, 203, 205 of Khata No.147 and 148, (the present new revenue numbers are 71, 72, 73, 74, 75, 76, 77) situated in village Haldwani, Malli Pargana Bhabhar, Tehsil Haldwani, District Nainital (hereinafter referred as to, "the suit property"). It is the case of the appellants that this property was purchased by their predecessors-in-interest through a sale deed on 31/3/1943. They are recorded tenure holder in possession of the suit property since then. But, the respondents are trying to interfere in the peaceful possession of the appellants and others.

(3.) The suit was decreed on 5/2/2018, against which, the appeal was preferred. In the appeal, the appellate court observed that the plot/khasra no.199 is not recorded in the name of the ancestors of the appellants and it was also observed that, "on perusal of impugned judgment, the lower Court miserably failed to reach a specific conclusion regarding the Khasra/plot no.199 as mentioned in the plaint whether the plaintiff has attained the ownership or possession of the said land. So the matter needs re- consideration after proper re-appreciation of evidence put forwarded by the parties". While observing so, the matter was remanded to the lower court to decide it afresh. This judgment and order dtd. 15/12/2020, passed in the appeal is impugned herein.