The appellant was the plaintiff in the suit. The suit was filed for the cancellation of the order dated 25.3.1985 by which his allotment has been cancelled. The suit has been decreed against which the respondent filed appeal which has been allowed and the order of the trial court has been set aside. The appellate authority has allowed the appeal and set aside the order of the trial court and dismissed the suit merely on the ground that the plaintiff has not sought the relief for possession and has only sought the relief for declaration relying upon the decision of the apex Court in the case of Ram Saran and another vs. Smt. Ganga Devi, reported in AIR 1972 SC 2685.
Learned counsel for the appellant submitted that the distinction in the present case is that the defendant was not in possession. He submitted that subsequently the defendant has allotted the premises in dispute on 26.7.1985 to one Sri Pawan Kumar and Sri Pawan Kumar was put to possession and since the defendant was not in possession therefore, plaintiff has not sought the relief for possession. He submitted that once the suit will be decreed and the cancellation order would be set aside, all the consequential effects will automatically go. In support of the contention he relied upon the decision of the apex Court in the case of Deo Kuer and another vs. Sheo Prasad and others, reported in AIR 1966 SC 359.
On the facts and circumstances, the question of law does arise, which requires consideration.
The appeal is being admitted on the following substantial question of law:-
1-Whether on the facts and circumstances of the case, the appellate authority was justified in setting aside the order of the court below and dismissing the suit on the ground that the appellant has not sought the relief for possession?
Sri Siddharth Varma, Advocate states that he has received instruction on behalf of the UPSIDC. If so advised, he may file counter affidavit. The learned counsel for the appellant may provide one copy of the memorandum of appeal to Sri Siddharth Varma, Advocate.
Order Date :- 4.4.2012 OP