Merely, because of non- examination of the plaintiff in the proceedings of the suit it will not disentitle the plaintiff from getting the relief which is otherwise he or she is able to substantiate by way of other evidences on record and oral testimony of the witness on record: the Uttarakhand high court

The high court of Uttarakhand passed a judgment on 16th February 2019 in the case Devkinandan Bhatt & Another v. Smt. Krishna Tiwari & Others (Second Appeal No. 123 of 2018) the case was presided by honourable justice Mr. Sharad Kumar Sharma



This is a defendants’ Second Appeal, wherein they have challenged the judgment and decree dated 13.09.2018, as passed by the 2nd Additional District Judge, Nainital in Civil Appeal No. 15 of 2013, Ganesh Bhatt & Others Vs. Smt. Krishna Tiwari, consequent thereto affirming the judgement and decree dated 30.03.2013, as rendered by the Civil Judge (Junior Division), Nainital in Original Suit No. 54 of 1997, Smt. Krishna Tiwari (since deceased) now represented through LR Vs. Revadhar Bhatt (since deceased) now represented through LR & Others. Consequent thereto, the Suit for permanent prohibitory injunction, as well as, for the amended relief of mandatory injunction, as later sought by the plaintiff by way of amendment has been allowed and the Suit was decreed in favour of the plaintiff.

The subject matter of the Suit in question was the property, which was, more particularly, described as Plot No. 7-B lying in the northern half portion in Vernon Cottage, Tallital, Nainital (hereinafter to be referred as “the property”) in the plaint, and the other southern half portion which is purchased and owned by Smt. Asha Pant having purchased from predecessor owner Mrs. Uma Joshi.


 It provides that civil courts to try all civil suits. The only restrictions which have been imposed is when it is barred by the specific Law bar of the specific Law will also have to be determined from the view point of the nature of dispute which is being sought to be adjudicated and relief sought because the inherent power which has been conferred on an individual for redressal of his grievance cannot be restricted by a distorted interpretation of section 41(h) of the Specific Relief Act. Besides this as far as this issue is concerned, it had never been bone of contention or pleading even before by the defendant/appellant at any stage of the proceedings. Owning to the above, since looking to the totality of the dispute and the grievance which was being sought to be redressed by the plaintiff pertaining to an Act of encroachment over a private land. The suit would have been the only remedy available and hence the bar of 41(h) of Specific Relief Act will not come into play. Hence, the issue no. D is also decided against the defendant-appellant. No other substantial question of law was pressed.

In view of the above, this court is of the considered view that there is no substantial question of law involved in the present second appeal to be answered by this Court; it is concluded by the concurrent finding of the facts. Hence same deserves to be dismissed.

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