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Uttarakhand High Court · body

2014 DIGILAW 364 (UTT)

Vinod Goyal v. Major General S. C. Sabbarwal

2014-09-09

ALOK SINGH

body2014
Judgment Alok Singh, J. Undisputedly, O.S. No. 507 of 2005 is pending disposal before competent civil court filed by plaintiffs respondents, herein, against the defendant petitioner, herein, seeking permanent prohibitory injunction against the defendant petitioner, herein, restraining him in making any interference in the possession of plaintiffs respondents, herein, over the suit property. Plaintiff is claiming himself in the actual physical possession of the suit property. 2. Perusal of the sale deed dated 19.01.2004 reveals that boundaries of the property purchased by plaintiffs respondents, herein, are specifically mentioned in the sale deed. 3. Section 41 of the Uttar Pradesh Land Revenue Act, 1901 reads as under: “Section 41 - Settlement of boundary disputes (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 actual 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.” 4. In my considered opinion, as mandated by sub-Section (2) of Section 41 of the Act, if during the course of inquiry, Collector finds that one of the parties is in wrongful possession, within a period of three months from the commencement of inquiry, he may by initiating summary inquiry find out as to who is person best entitled to the property. In my considered opinion, if question of possession is pending disposal before the civil court in regular civil suit summary inquiry under Section 41 of the Act, regarding possession of either of the parties should not be permitted. 5. In view of the above discussion, writ petition succeeds and is hereby allowed. Impugned orders are hereby set aside. In my considered opinion, if question of possession is pending disposal before the civil court in regular civil suit summary inquiry under Section 41 of the Act, regarding possession of either of the parties should not be permitted. 5. In view of the above discussion, writ petition succeeds and is hereby allowed. Impugned orders are hereby set aside. Application moved by the plaintiffs/respondents, herein, under Section 28 of the Land Revenue Act, which was treated under Section 41 of the Act is hereby rejected. However, plaintiffs/respondents, herein, shall be at liberty to move appropriate application for appointment of Survey Commission to locate property, if location and identification of the property is disputed in the pending civil suit. If such an application is moved, learned trial court shall decide the same at its own merit, in accordance with law. 6. CLMA No. 815 of 2010 also stands disposed of accordingly.