Decided on June 18,2013

Nagar Panchayat Sultanpur Appellant
MOHAMOOD Respondents


B.S.VERMA, J. - (1.) BY means of this writ petition, the petitioner has prayed for a writ or direction in the nature of certiorari quashing the impugned order dated 25.11.2009 passed by IInd Additional Civil Judge (S.D.), Kashipur, District Udham Singh Nagar in O.S. No. 264 of 2006, Mahmood & another Vs Nagar Panchayat, Sultanpur and rejected the application of the petitioner (Paper No. 119C) for issuing Survey Commission.
(2.) BRIEF facts of the case, giving rise to the petition, are that plaintiff/respondents filed a original suit No. 264 of 2006 before the Civil Judge (J.D.), Kashipur, District Udham Singh Nagar for permanent injunction. The said suit was filed with the pleadings that plaintiff is in possession of land recorded in Khassra (plot) No. 803/7 measuring 0.098 hectare situated in Village Sultanpur. It was also asserted that the said land was recorded in the name of the father of the plaintiff. The petitioner filed written statement denying the pleadings of the plaint stating therein that Khasra (plot) No. 803 is a big pond and is property of petitioner defendant. It has further alleged that Khasara (plot) No. 803/07 relied by the plaintiff is neither separate from Khasra (plot) No. 803, owned by the petitioner nor it has any identify or map. The petitioner/defendant filed an application for issuance of a survey commission for the measurement and demarcation of Khasara (plot) No. 803, which was dismissed by IInd Additional Civil Judge (J.D.), Kashipur, District Udham Singh Nagar vide order dated 25.11.2009. Aggrieved by the said order, the petitioner preferred this petition before this Court.
(3.) IN spite of service, neither the respondent nor any counsel on his behalf appeared before the Court. Accordingly, heard learned counsel for the petitioner and perused the record. The plaintiff respondent has filed objection alleging therein that this court has no jurisdiction to decide the matter regarding land in dispute. He has referred Section 41 of U.P. Land Revenue Act (hereinafter referred to as 'Act) according to which, all disputes regarding boundaries shall be decided on the basis of existing survey map, but if this is not possible, the boundaries shall be fixed on the basis of the actual possession. The finding of the court below in view of the fact that land can only be demarcated under Section 41 of the Act is erroneous. Under Section 41 of the Act, only demarcation can be made. The proceeding under Section 41 is summary in nature. On this ground the order of rejection of the application is bad in the eye of law. The issue whether the land is not identifiable and survey is necessary has been dealt with by the Honble Apex Court in Sripat Vs Rajendra Prasad & others reported in 2000 JTR page 774 SC. The Honble Apex Court in the aforesaid case has held as under: - "Where there is a serious dispute with regard to the area and boundaries of land in dispute, especially with regard to its identity, the Courts should get the identity established by issuing a Survey Commission to locate the plot in dispute to find out real controversy in the case.";

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