PRAKASH BHATT Vs. DEVKI NANDAN BHATT

JUDGEMENT

(1.) These two applications No. 5467 of 2004 and 5981 of 2004 have been moved on behalf of respondent Nos. 1 and 2 for correction/amendment in the judgment and order dated 18-2-2003 passed in A.O. No. 198 of 2002 and 199 of 2002 and decree followed therefrom.

(2.) Heard learned counsel for the parties at length and perused the entire record.

(3.) This case has a chequered history. A suit No. 13 of 1999 was instituted by the appellant Sri Prakash Bhatt against Sri Ganesh Bhatt and Sri Devki Nandan Bhatt (present respondents) for perpetual prohibitory injunction that the defendants be restrained from interfering in the peaceful possession of plot No. 4 and 5 situated at Vernon Cottage Compound, Tallital, Nainital owned by him. Another cross suit No. 51 of 2000 was filed by Sri Devki Nandan Bhatt and Sri Ganesh Bhatt (present respondents) against Sri Prakash Bhatt, Smt. Sunita Pandey, Sri Urba Dut Pandey, Sri Radha Ballabh Pandey, Smt. Asha Pant and Sri Sharat Chand Tiwari (defendant-respondents) praying that they be restrained from using 6 feet wide footpath by the plaintiff which lies between plot Nos. 4 and 5 on one side and plot No. 7-B on the other side in said Compound. Both the suits were tried together and disposed of vide judgment and order dated 11-10-2001 passed by learned Civil Judge (Junior Division), Nainital whereby suit No. 13 of 1999 was decreed with costs and the suit No. 51 of 2000 was dismissed as against the defendants No. 1 to 4, but decreed as against remaining defendants No. 5 and 6. It appears that against said judgment and decree, three appeals were filed before the First Appellate Court viz. civil appeal No. 59 of 2001 (against decree in civil suit No. 51 of 2000) and civil appeal No. 60 of 2001 (against decree in civil suit No. 13 of 1999), both filed by Sri Devki Nandan Bhatt and Sri Ganesh Bhatt (present respondents) while civil appeal No. 61 was filed by Smt. Asha Pant and Sharat Chand Tiwari (defendant No. 5 and 6 in suit No. 51 of 2000) in respect of decree passed against them. All the three appeals were heard together by the First Appellant Court and disposed of vide common judgment and order dated 26-7-2002 whereby all the three appeals were allowed and the judgment and decree passed by the learned trial Court were set aside. However, the learned First Appellate Court remanded the case to the trial Court for deciding the suits afresh after getting surveyed the land in dispute. Against said judgment and decree dated 26-7-2002, appellant Sri Prakash Bhatt filed Appeal from Order No. 198 of 2002 in respect of civil appeal No. 59 of 2001 arising out of the civil suit No. 51 of 2000 and another Appeal From Order No. 199 of 2002 in respect of civil appeal No. 60 of 2001 arising out of civil suit No. 13 of 1999.