Reserved on:27.05.2019 Delivered on:31.05.2019
Court No. - 27
Case :- MATTERS UNDER ARTICLE 227 No. - 5230 of 2015 Petitioner :- Sumitra Devi Respondent :- Parbhu Counsel for Petitioner :- D.K. Tiwari,Ram Kishore Pandey Counsel for Respondent :- Shyam Sunder Mishra Hon'ble Piyush Agrawal,J.
Heard learned counsel for the petitioner and learned counsel for the respondent.
By means of the present writ petition, the petitioner is seeking quashing of the order dated 30.05.2015 passed by the Additional District Judge / Special Judge (E.C. Act), District – Fatehpur on Misc. Application No. 7-Ga-2, by which the petitioner's prayer for issuing survey commission over the property in dispute, has been rejected.
The facts of the case are that on 10.02.2003, the petitioner purchased the property, bearing plot nos. 2495 and 2496, total area 0.0160 hectare, situated in Arabpur, Tehsil & District – Fatehpur, from Shri Parbhu Dayal, son of Satta Prasad. On 31.03.2003 (hereinafter referred to as, 'the property in dispute'), the said property was got mutated in the revenue record. Thereafter, some dispute arose between the petitioner and the respondent no. 1, against which the petitioner instituted Civil Suit No. 525 of 2009 in the Court of Civil Judge (Junior Division), Fatehpur for permanent injunction restraining the defendants from interfering in the possession of the petitioner over the property in dispute. The opposite party filed written statement alleging that the applicant is interfering in the property, bearing plot nos. 2495 and 2496. On 16.11.2013, the Civil Judge (Junior Division), Fatehpur dismissed the suit of the petitioner. The petitioner assailed the order dated 16.11.2013 by preferring Civil Appeal No. 4 of 2014 before the Court of Additional District Judge / Special Judge (E.C. Act), District – Fatehpur. In the said appeal, on 21.01.2014, the petitioner moved an application for issuing survey commission over the property in dispute. The Additional District Judge / Special Judge (E.C. Act), District – Fatehpur, vide impugned order dated 30.05.2015, rejected the application of the petitioner. Hence, the present petition has been filed.
Learned counsel for the petitioner has submitted that the main issue between the parties was as to whether the suit property is a part of plot nos. 2495 and 2496 or it lies over plot no. 2497, as claimed by the respondents. It is further submitted that the issue in question can be decided by issuing a survey commission. In support of his contention, learned counsel for the petitioner has relied upon the judgements of the Apex Court in Shreepat Vs. Rajendra Prasad 2000 (6) SCC 389, Haryana Waqf Board Vs. Shanti Sarup & Others (SLP No. 7510 of 2007, decided on 16.07.2008) as well as the judgement of this Court in Matters U/A 227 No. 1920 of 2016 (Indra Pal Singh Vs. Kanpur Development Authority & Others, decided on 31.03.2016).
Learned counsel for the respondent has vehemently opposed the arguments advanced by the learned counsel for the petitioner by submitting that issuance of survey commission cannot be permitted at the appellate stage. He has further submitted that in absence of any specific prayer of the applicant before the lower court, the same cannot be permitted at this stage and therefore, the application has rightly been rejected.
In response to the said submissions, learned counsel for the petitioner has relied upon the written statement filed along with the supplementary affidavit as Annexure No. 1 and submits that the applicant before the Civil Judge (Junior Division) also made a prayer for issuance of survey commission.
This Court has considered the rival submissions and has perused the record.
The copy of the plaint, which has been filed as Annexure No. 1 from page 18 onwards as well as the written statement filed along with the supplementary affidavit, shows that there is a dispute between the parties about plot nos. 2495 and 2496 relating to its location and identification and the same cannot be decided without having a survey report. The Hon'ble Supreme Court in Shreepat (supra) and Haryana Waqf Board (supra) has held that such a dispute cannot be decided without having a survey report.
In view of the above fact, the impugned order, rejecting the application of the petitioner for issuance of the survey commission, cannot be sustainable. The impugned order dated 30.05.2015 passed by the Additional District Judge / Special Judge (E.C. Act), District – Fatehpur on Misc. Application No. 7-Ga-2 is hereby set aside.
In the result the petition succeeds and is allowed. The court below, i.e., the Additional District Judge / Special Judge (E.C. Act), District – Fatehpur, is directed to issue a survey commission over the land in dispute.
Order Date :-31.05.2019
Amit Mishra