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2006 DIGILAW 104 (ALL)

SATYADEV v. A. D. J. , VARANASI

2006-01-12

VINEET SARAN

body2006
JUDGMENT Hon’ble Vineet Saran, J.—Although this case has a chequered history, but only brief facts relevant for the decision of this writ petition are being narrated below. The dispute is between the boundaries of two plots No. 84/3 and 84/4 in the village in question, regarding which Suit No. 636 of 1992 filed by the petitioner and Suit No. 592 of 1992 filed by the respondents No. 3 and 4 are pending before the Civil Judge (Junior Division), Varanasi. Earlier, with regard to the possession of the plot in question, the matter came up to the High Court and while deciding Writ Petition No. 37917 of 1999, Smt. Radha Devi v. Special Judge, Varanasi, this Court on 7.9.1999 had directed for appointment of a Survey Commissioner to submit his report who was to make local investigation for demarcation of the properties and ascertain the existence of the alleged road, if any, and demarcate the same in accordance with the Rules relating to survey, taking a fixed point. Pursuant thereto, vide his order dated 4.10.1999, directions had been issued by the trial Court for appointing a Survey Commissioner, who was to demarcate the entire Plot No. 84 in accordance with the Bandobasti Naksha and thereafter determine the boundaries of the plots in question i.e. No. 84/3 and 84/4. In response thereto the Survey Commissioner submitted his report dated 2.1.2004 in Suit No. 636 of 1992. The objections were filed by the parties and thereafter the trial Court, vide its order dated 9.7.2004, and after holding that the survey report was not in accordance with the provisions of law as well as the directions given by the High Court vide judgment dated 7.9.1999 and also the order of the trial Court dated 4.10.1999, rejected the survey report dated 2.1.2004 and issued directions that a fresh report be submitted within 20 days, taking into account the orders dated 7.9.1999 and 4.10.1999. Challenging the said order, the petitioner filed Civil Revision No. 167 of 2004, which has been dismissed by the Additional District Judge, Court No. 1, Varanasi vide his order dated 28.7.20004. Aggrieved by the aforesaid orders dated 9.7.2004 and 28.7.2004, the petitioner has filed this writ petition. 2. I have heard Sri O.S.Tripathi, learned counsel appearing for the petitioner as well as Sri Vijai Kumar Rai and Sri Rajendra Tewari, learned counsel appearing for the contesting respondents. Aggrieved by the aforesaid orders dated 9.7.2004 and 28.7.2004, the petitioner has filed this writ petition. 2. I have heard Sri O.S.Tripathi, learned counsel appearing for the petitioner as well as Sri Vijai Kumar Rai and Sri Rajendra Tewari, learned counsel appearing for the contesting respondents. Pleadings between the parties have been exchanged and with the consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself. 3. The contention of the petitioner is that the respondents are trying to delay the decision of the suit by raising frivolous objections to the Survey Commissioner’s report dated 2.1.2004. According to the petitioner, since the Bandobasti Naksha was not available, the Survey Commissioner had prepared the report as well as site plan in accordance with the best material available and as such the same ought to have been accepted by the trial Court. 4. On perusal of the site plan annexed with the report of the Survey Commissioner as well as the site plan annexed with the compromise decree of the year 1967 relating to the same property, which has been annexed as Annexure-S.A. 1 to the supplementary affidavit filed by the petitioner, it is clear that the boundaries in the two site plans do not tally. Learned counsel for the petitioner places reliance on the site plan given in the compromise decree of 1967. However, it has been submitted by the petitioner that there have been several changes in the property in question as since 1967, several constructions have come up and thus the new site plan submitted by the Survey Commissioner may be different, but is still correct. However, without going into the details of the discrepancies between the two site plans, it may only be mentioned that a bare perusal of the two site plans would show that the boundaries of Plot No. 84/3 in both the plans are totally different. Even otherwise, it has rightly been observed by the revisional Court that compliance of Rule 71 of the General Rule Civil Part I has not been made as the Survey Commissioner has not given reasons or data on the basis of which he has based his report. In the survey report itself it has been mentioned that the Bandobasti Naksha could not be made available to the Survey Commissioner as the same was not in the record-room. In the survey report itself it has been mentioned that the Bandobasti Naksha could not be made available to the Survey Commissioner as the same was not in the record-room. If that was so, the Survey Commissioner ought to have sought appropriate guidance from the trial Court which had directed the Survey Commissioner to demarcate the boundaries after taking the Bandobasi Naksha into considerations. 5. For the foregoing reasons, in my view, the orders impugned in this writ petition appear to be justified and no interference is called for with the impugned orders. Accordingly, this writ petition is dismissed, however, with the following observations : (i) Since the suits have been pending for over a decade, it would be desirable that a fresh report of the Survey Commissioner be obtained by the trial Court as expeditiously as possible, preferably within a period of two months from the date of filing of a certified copy of this order. (ii) A fresh Survey Commissioner be appointed in place of the Survey Commissioner who had submitted his report dated 2.1.2004. (iii) The Survey Commissioner shall submit its report in compliance with the provisions of the General Rules Civil, after taking into consideration the observations made in the judgment of this Court dated 7.9.1999 passed in Writ Petition No. 37917 of 1999, as well as the direction issued by the trial Court vide order dated 4.10.1999. (iv) In case if the Bandobasti Naksha is not available even now, then the Survey Commissioner shall seek fresh guidance of the trial Court. (v) On the submission of the fresh report by the Survey Commissioner, the parties may raise their objections within a fortnight and the trial Court shall pass appropriate orders on the same within a fortnight thereafter. (vi) The trial Court shall within six months from today, submit its report of compliance to the Registrar General of this Court immediately after appropriate orders are passed by the trial Court after submission of the report of the Survey Commissioner. Petition Dismissed. ———