Disposed

Shyamal Adhikari and Others v. Champak Vishwas

Uttarakhand HC6 Jul 2017SA/29/2015

Case brief

AI extract

What is this about?

The High Court of Uttarakhand answered a substantial question of law stating that while the defendant cannot take forcible possession, he is entitled to initiate legal proceedings for recovery based on his father's allotment, despite the appeal being dismissed on delay grounds.

What did the court decide?

Ans wered that the defendant cannot take forcible possession but may initiate proceedings for recovery.

Shyamal Adhikari and Others Vs Champak Vishwas — Property and Title | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Second Appeal No. 29 of 2015

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Shyamal Adhikari & Others

…. Appellants

Versus

Champak Vishwas

…. Respondents

Mr. Lokendra Dobhal, Advocate along with Ms. Sonia Chawla, Advocate for the appellants. Mr. M.S. Bhandari, Advocate for the respondent.

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Hon’ble Servesh Kumar Gupta, J.

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Having heard the learned counsels of either party, the following substantial question of law is formulated:

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Whether the defendant Mr. Champak Vishwas can interfere the peaceful possession over the property in question without recourse to the procedure established by the law?

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It transpires that both the parties migrated from Bengal as a refugee in the early 70s. The plot no. 96 admeasuring 15X30 feet was allotted to Late Shri Dhirendra Adhikari, whose descendants are plaintiffs/ appellants while a similar measured plot was allotted to Late Shri Jeevan Krishna Vishwas, the father of the defendant. It transpires that Shri Jeevan Krishna Vishwas entrusted the possession of plot no. 102 to Shri Dhirendra Adhikari for taking care of the same. So, this way Shri Dhirendra Adhikari came into the possession of both the plots and such plots now in the possession of his descendants. They are in apprehension that Shri Champak Vishwas can interefere in their possession and create some nuisance in order to recover the possession over the plot no. 102.

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Although, the OS No. 107/2007 seeking the prohibitory injunction against Shri Champak Vishwas has been dismissed by the learned Trial Judge and the decree of such dismissal was conferred by the First Appellate Court in the appeal no. 19/2011 but, it is abundantly clear that the dismissal of the suit as well as decree was on the premise that PW1-plaintiff had accepted in his crossexamination that Shri Champak Vishwas did not create any quarrel with him. It was also accepted that Shri Champak Vishwas did not make any effort to enter forcibly into the plot no. 102 which is in the possession of plaintiffs.

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This second appeal has been preferred with the delay of 216 days wherefor, the sole reason in the enclosed affidavit has been disclosed as the appellants/plaintiffs are very poor persons and agricultural labourer and do not know about the legal procedure of the law, therefore, they could not collect the sufficient money for filing the second appeal before this Hon’ble Court.

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Appreciating the whole controversy, I also not convinced either with the clarification given in the delay condonation application or do not find any reason to admit this second appeal but, at the same time, the substantial question which has been indicated above is answered in the following terms:

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Mr. Champak Vishwas cannot be permitted to take a forcible possession of the plot no. 102. But, at the same time, he will have every liberty to initiate the proceedings in the competent court of law for recovery of the possession on the basis of allotment of such land in the name of his father Shri Jeevan Krishna Vishwas in the early 70s.

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This second appeal is disposed of in the above

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terms.

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(Servesh Kumar Gupta, J.)

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06.7.2017

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Pooja

Shyamal Adhikari and Others v. Champak Vishwas

Case brief

What is this about?

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Shyamal Adhikari and Others v. Champak Vishwas

Case brief

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