JUDGMENT Hon’ble B.S. Verma, J. Sri Tapan Singh, Advocate, holding brief of Sri Lokpal Singh, counsel for the respondents No. 2 and 3 made a statement that he has no instructions in this case. The other counsel Sri Rajendra Singh, Advocate, was not present yesterday. The writ petition was listed today for hearing. Sri Rajendra Singh, Advocate, has not put in appearance even today. 2. Heard Sri Aditya Singh, Advocate, holding brief for Sri Dharmendra Barthwal, learned counsel for the petitioner and perused the record. 3. By means of this writ petition, the petitioner has sought quashing of the impugned judgment and order dated 3-10-2007 passed by Additional Chief Revenue Commissioner, Uttarakhand, Dehradun (for short A.C.R.C.). 4. According to the petitioner, the respondent nos. 2 and 3 moved an application before the Assistant Collector/Sub Divisional Officer Roorkee on 17.4.2003 under Section 41 of the U.P. Land Revenue Act for measurement and demarcation of the land of plot no. 53, Khata No. 58 measuring 0.164 Hectare situate in village Paluni, Tahsil Roorkee, Pargana Bhagwanpur, District Haridwar. The Assistant Collector after hearing both the parties and considering the reports etc. rejected the application vide order dated 12.04.2004 (copy Annexure No.3 to the writ petition). 5. Aggrieved by the order dated 12.4.2004, an appeal was preferred in the Court of Commissioner Garhwal bearing Appeal No. 20 of 2003-04, Tallu and others Vs. Samer Chand and others, which was dismissed vide judgment dated 25.5.2005 (copy Annexure No. 4 to the writ petition). Aggrieved by the order of the Commissioner, the respondent nos. 2 and 3 assailed the order of appellate court in revision under Section 219 of the U.P. Land Revenue Act, 1901 before the respondent no.1. The revision has been allowed by the impugned judgment and order dated 3.10.2007, which have rise to the present writ petition. 6. The writ petition has been filed on the ground that the learned A.C.R.C., while passing the impugned order, had taken into consideration the report of the revenue inspector dated 27.3.2003 and the spot inspection made by Sub Divisional Officer Roorkee on 20.3.2004 and has recorded a categorical finding that the respondents (tenure holders) were not in possession of plot no. The writ petition has been filed on the ground that the learned A.C.R.C., while passing the impugned order, had taken into consideration the report of the revenue inspector dated 27.3.2003 and the spot inspection made by Sub Divisional Officer Roorkee on 20.3.2004 and has recorded a categorical finding that the respondents (tenure holders) were not in possession of plot no. 53 since before three months from the date of initiation of the proceeding under Section 41 of the U.P. Land Revenue Act and it has been categorically held that in the demarcation proceeding, possession cannot be delivered to the respondent-revisionists. 7. Learned counsel for the petitioner has vehemently contended that in the concluding paragraph of the impugned judgment, the learned A.C.R.C. has given a perverse finding holding that the application for demarcation is maintainable. Learned A.C.R.C. has further held that the rejection of the application for demarcation by the trial court on the ground that the respondents-revisionists were not in possession of the land since before three months and third person had been in possession, is not justified. Accordingly, the learned A.C.R.C. set aside the order passed by the learned Sub Divisional Officer as well as learned Commissioner in appeal and remanded the case to the trial court. 8. It is clear from a bare perusal of the impugned order dated 3.10.2007 that at one place the learned A.C.R.C. has given a categorical finding that possession cannot be handed over by demarcation in the present proceeding under Section 41 of the Land Revenue Act, but in the very next paragraph, it was concluded that the application for demarcation cannot be rejected on the ground that the revisionists were not in possession over plot no. 53 three months prior to the date of application. This finding is totally perverse and the learned A.C.R.C. fell into error in holding that the application for demarcation is maintainable. It is well established as per Rules if the applicant was not in possession three months prior to the date of application, no demarcation can be directed under Section 41 of the Land Revenue Act. 9. While parting with the order, it may be added that the respondent nos. 2 and 3 (revisionists before the A.C.R.C.) have already filed a suit (No. 01 of 2006-2007, Tellu and another Vs. 9. While parting with the order, it may be added that the respondent nos. 2 and 3 (revisionists before the A.C.R.C.) have already filed a suit (No. 01 of 2006-2007, Tellu and another Vs. Sumer Chand and others) against the petitioner under Section 209 of the U.P. Z.A. and L.R. Act before the Assistant Collector concerned, a copy of the plaint has been annexed as Annexure No. 5 to the writ petition. 10. For the reasons aforesaid, the order passed by the learned A.C.R.C. is liable to be set aside and the writ petition deserves to be allowed. 11. The writ petition is allowed. The impugned order dated 3.10.2007 is set aside. The order passed by the learned Sub Divisional Officer Roorkee, dated 12.4.2004, as well as order passed by the Commissioner, dated 25.5.2005, (Annexure Nos. 3 and 4 respectively) are maintained. Costs easy.