Heard learned counsel for the appellant.
Admit.
Issue notice to the respondents.
Let counter affidavit be filed within six weeks. Rejoinder affidavit may be filed within two weeks thereafter.
List in the third week of March 2010.
Following substantial questions of law arise for consideration in the present case.
(1)Whether Assistance of Survey commission to ascertain the correctnessof the respective claims (as held by Apex Court in the case of Shreepat Vs. Rajendra Prasad and Others J.T. 2000 (7) SC 379 was essential and in the absence of survey commission the decree and judgment are liable to be set aside?
(2) Whether the burden of proof when the identify and location of the disputed plot was set up by the plaintiffs is disputed and disputed place is shown on another place it is the legal duty of the plaintiffs to discharge the burden that the place mentioned in the plaints is correct through the assistance of Survey Commission.
(3) Whether the courts below committed illegality in holding that the defendant/appellant did not got survey commission issued to prove that land in dispute is situated in plot no.397 village Bonjha?
(4) Whether after recording a finding that the plaintiffs did not produce any document regarding their right and title only on the basis of oral evidence mandatory injunction may be granted against the land of local authority?
Till the next date of listing, the respondents shall not change the nature of the land in dispute. It shall not be alienated, sold or mortgage in any manner. No further construction shall be raised on the land in dispute as prima facie it appears to be public land.
Order Date :- 29.1.2010 pks