JUDGMENT I.B. Singh and S.K. Sahgal, Members - This is a review application against order dated 29-8-1979 passed by Mr. Ashwini Kumar, the then Member, Board of Revenue, U.P. Lucknow, in revision no. 19(A) L.R. 1978-79/Mathura, setting aside the order passed by learned Additional Commissioner, Agra Division, Agra, in appeal upholding the order of the S.D.O. dismissing application for demarcation as S.P. was found in possession of the disputed area during consolidation and afterwards. 2. We have heard the learned counsel for the parties and have perused the record. 3. It has been argued that Section 41 of the Land Revenue Act envisages demarcation on the basis of existing survey map, otherwise on the basis of actual possession, therefore, the learned Member of the Board committed illegality on the face of the record in allowing the revision application and dismissing the demarcation application on the ground that the defendant was in long possession. Reliance has been placed on 1920 R.D. page 333, 1941 R.D. page 740. 4. It has been argued in reply that all points were argued and the review application cannot be treated as a second appeal. Reliance has been placed on 1971 R.D. page 26, 1972 R.D, page 19 and 1969 R.D. page 63. 5. It is admitted that the survey map is available and the report of Supervisor-kanungo dated 1-9-1972 and the field book attached to the same dearly show that all the boundary of plot no. 219 are intact and are available on the spot, except for 45 acre marked by letters R.B.P.Q. which has been included by Budhi in his own plot no. 217 and at point p, a 'rahat' belonging to Budhi exists. It is also clear according to the findings of the courts below that Budhi is in long possession over this area of plot no. 219 since during consolidation operations. 6. Thus the point for determination is whether where survey map is available for demarcation purpose, existing marks of long possession which includes Mend, will disentitle demarcation or not ? 7. It is also clear according to the findings of the courts below that Budhi is in long possession over this area of plot no. 219 since during consolidation operations. 6. Thus the point for determination is whether where survey map is available for demarcation purpose, existing marks of long possession which includes Mend, will disentitle demarcation or not ? 7. As a matter of fact the learned Member by his order dated 29-8-1978 purports to hold that although survey map is available but as Budhi is in long possession, therefore, demarcation should be refused and on that basis approved the order of S.D.O. dated 8-1-1973 and set aside order of learned Additional Commissioner dated 10-10-1973 directing demarcation to be done on the basis of survey map available. 8. Section 41 of the U.P. Land Revenue Act runs as follows : - (1) All disputes regarding boundaries shall be decided as far as possible on the basis of existing survey maps, but if this is not possible, the boundaries shall be fixed on the basis of equal possession. (2) If, in the course of an Inquiry into a dispute under this section, the Collector is unable to satisfy himself as to which party is in possession, or if it is shown that possession has been obtained by wrongful dispossession of the lawful occupants of the property within a period of three months previous to the commencement of the inquiry, the Collector - (a) in the first case shall ascertain by summary inquiry who is the person best entitled to the property, and shall put such person in possession ; (b) in the second case, shall put the person so dispossessed in possession ; and shall then fix the boundary accordingly." 9. It will be clear that boundary dispute is to be decided as far as possible on the basis of existing survey maps and only when it is not so possible the boundaries shall be fixed on the basis of actual possession. It is only when it is not possible to decide the dispute on either on these basis that there can be a consideration of title under Section 41 (2) holding a summary inquiry as to who is the person best entitled to the property. Sheo Mangal Pathak v. Dharamdevi Mst. and others, 1941 R.D. page 740 and Dhyan Singh Ch. It is only when it is not possible to decide the dispute on either on these basis that there can be a consideration of title under Section 41 (2) holding a summary inquiry as to who is the person best entitled to the property. Sheo Mangal Pathak v. Dharamdevi Mst. and others, 1941 R.D. page 740 and Dhyan Singh Ch. and others v. Tashim Husain Qazi and others, 1945 R.D. page 547. 10. In the present case although the survey map is available, but demarcation has been refused on the basis of long standing possession of the O.P. As a matter of fact demarcation to the applicant has been refused but to the Opposite party it has been allowed on the basis of his possession which is certainly against the provisions of law and amounts to mistake apparent on the face of the record. The second lag of Sub-Section 1 of Section 41 is to be followed only when the existing survey map is not available and only then sub-Section 2 Clauses (a) & (b) come into operation otherwise not. 11. The fallacious apprehension in the minds of learned S.D.O, and learned Member appears to have been that as the possession of Budhi was long standing and was more than 3 months old period to the start of the proceedings therefore, keeping in view the provisions of sub-Section 2 and its clause (b) in their mind they felt unnecessarily helpless that by demarcation they will be unable to put the applicant in possession, Budhi's possession being of more than 3 months previous to the commencement of the inquiry. 12. If the survey map would not have been available then the demarcation would have been done according to actual possession on the spot and would have resulted in demarcation according to the possession of Budhi his possession being more than three months old previous to the start of the inquiry and no question of putting the applicant in possession could have arisen but as the survey map is available the demarcation shall have to be done on the basis of survey map. When demarcation is so done there is no question of putting the applicant in actual possession on the spot according to the demarcation made and there is no question of disturbing the possession of Budhi on the spot because in such cases there is no provision for putting the applicant or his objector in possession on the spot and after the demarcation the aggrieved party will have a chance or getting the wrongful occupier ejected by the competent court. 13. It has been held successively that demarcation shall be done according to existing survey maps in preference to possession. We may refer to the following ruling of the Board in this respect which goes to support our view taken above. 14. In Bukho, Musammat Kurav Dhaken Lal, IV R.D. 1920 page 333. It has been held I as follows : - "Land Revenue Act III of 1901, Section 41 (1) : - Existing survey map, meaning of boundary dispute - Survey map takes precedence over points of possession. The existing survey map means the map of the last settlement within Section 41 (1) Land Revenue Act and in a case of boundary dispute such map takes precedence over points of possession. 15. In view of the above we are of definite opinion that learned Member committed illegality in refusing demarcation on the basis of existing survey map on the ground that Budhi was in long possession. The argument that the review is not maintainable and is being converted into unautborised appeal is not justified. The learned member failed to exercise jurisdiction legally vested in him, therefore, the review application is liable to be allowed and the impugned order of the learned Member and the order of the S.D.O. are liable to be set aside and that of the learned Additional Commissioner is liable to be restored. 16. In view of the above, this review application is allowed. The order passed by the Board dated 29-8-1978 and order dated 8-1-1973 passed by the S.D.O. are set aside and that of the learned Additional Commissioner dated 10-10-1973 is restored and the revision no. 9/LR/73-74/Mathura is rejected.