Decided on July 05,2007

Har Singh Bisht Appellant
District Judge and Ors. Respondents

Referred Judgements :-



B.S. Verma, J. - (1.)THIS writ petition has been filed to issue a writ of certiorari quashing the impugned order dated 8 -11 -2006 and 19 -3 -2007 passed by the District Judge, Almora, in Civil Appeal No. 9 of 2006, Har Singh v. Uttam Singh. By the order dated 8 -11 -2006, the learned District Judge Almora has rejected the application 24 -C moved by the Petitioner holding that the application for survey commission for making the survey of the spot has been moved just to cause delay. By the order dated 19 -3 -2007, the application filed by the Petitioner paper No. 30 -C has been rejected on the ground that the Appellant has not given any ground on which he intends to file the evidence and that the application does not fall within the purview of Order 41, Rule 27 of the Code of Civil Procedure
(2.)THE Petitioner moved application 24 -C for issue a survey commission for making survey of the spot. It was alleged in the application that the dispute is of public path way and the pathway is being used by all the residents of the village, while the Respondent No. 3 intends to grasp the entire public path way. Plaintiff -Respondent Uttam Singh filed objection and it was alleged therein that the question in dispute is whether the property in dispute is a Bhumidhari land or not. The burden lies upon the Appellant to prove it and it is to be decided on the basis of the evidence to be adduced by the parties.
The suit was filed by Plaintiff Uttam Singh with the prayer that the Defendant No. 1 be restrained from interfering in the way of the Plaintiff situated in plot Nos. 2678, 2677 and 2679 of village Khatyari, Patti Khasparja, Tehsil and district Almora, which has been shown in the plaint map by letters A, B, C, D. It has further been prayed that the Defendant No. 1 - Appellant be directed to remove water pipe from the property in dispute. The learned District Judge, Almora, after hearing both the parties and after perusing the averments made in the application as well as the objection filed by the Plaintiff -Respondent came to the conclusion that the survey commission is useful only when there is dispute regarding the identity of the property or the identity of the property has to be ascertained. There is no use to issue a survey commission.

(3.)THE Apex Court in the case of Shreepat v. Rajendra Prasad and Ors., 2000 (2) J.C.L.R. 462 (Sc) has held as under:
Serious dispute with regards to the area and boundaries of land in question -Decided only on the basis of oral evidence -Identity of land to be decided on the basis of survey commission -Which was not done.


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