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2021 DIGILAW 401 (UTT)

Sumitra Devi v. Dinesh

2021-09-02

RAVINDRA MAITHANI

body2021
JUDGMENT Ravindra Maithani, J. (Oral). - Since common questions of law and facts are involved in both these revisions, they are being decided by this common judgment. 2. Civil Revision No. 49 of 2021 is directed against the order dated 23.01.2021 passed in Original Suit No. 86 of 2015, Smt. Sumitra Dvei and another v. Dinesh and others (for short, "the suit"), by the court of Civil Judge (Sr. Div.), Kashipur, District Udham Singh Nagar. By the impugned order, a Commission was issued to identify the disputed land, and revenue officers were directed to submit the report on the points as indicated in the order. Those points have been enumerated in para 43 of the impugned order. 3. Facts necessary for considering the controversy, briefly stated, are that the revisionists filed the suit for permanent injunction on the ground that they being owners in possession of the disputed land (Plot No. 55 M No. 55/2 area 0.404 hect., 55/2 area 0.405 hect. and 55/2 area 0.405 hect., total area 1.214 hect.) situated in village Gangapur Gosain, Tehsil Kashipur, District Udham Singh Nagar, but the respondents forcibly want to dispossess the revisionists from the disputed land and want to grab the disputed land. 4. At one stage of the suit, temporary injunction application was allowed by an order dated 06.01.2016 passed in the suit, which was challenged in Appeal from Order No. 80 of 2016 before this Court. While hearing the appeal, this Court on 01.03.2016 observed that the disputed land needs to be admeasured through Court Amin and directed the Court Amin to submit a report. The report of the Court Amin could not be filed before this Court, but the Appeal from Order No. 80 of 2016 was dismissed on 28.04.2016. 5. It appears that the respondents moved an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, in the suit, which was rejected on 02.08.2017. That order was challenged in Civil Revision No. 107 of 2017 before this Court. The revision was dismissed on 04.05.2018 but the Court observed as hereunder:- "13. Since the controversy revolves around identification of the suit land, therefore, Trial Court may seek assistance of revenue authorities for the purpose of identification of land in question, if need be. That order was challenged in Civil Revision No. 107 of 2017 before this Court. The revision was dismissed on 04.05.2018 but the Court observed as hereunder:- "13. Since the controversy revolves around identification of the suit land, therefore, Trial Court may seek assistance of revenue authorities for the purpose of identification of land in question, if need be. This Court hoped and expects that the learned trial court will decide the suit expeditiously without granting unnecessary adjournment to the parties." 6. Pursuant to the order dated 04.05.2018 passed in Civil Revision No. 107 of 2017, by the impugned order Commission was issued. 7. Challenge has been made, inter alia, on the ground that directions were issued by the court to get survey done through the Court Amin and not by the revenue authorities; in Civil Revision No. 107 of 2017, the Court had directed that the assistance of the revenue officials may be taken but the entire task could not have been assigned to the revenue authorities. It is also assailed on the ground that the court could not have gone into the merits of the case while issuing such a Commission. 8. Civil Revision No. 48 of 2021 has been preferred against the order dated 25.03.2021 passed in the suit, by which the Commission report submitted pursuant to the order dated 23.01.2021 has been accepted and made part of the record. 9. As stated hereinabove, on 23.01.2021, the court had ordered that a Commission be issued with directions to submit its report on various points. The Commission submitted its report, on which objections were filed by the revisionists, but by the impugned order dated 25.03.2021 the report was accepted and made part of the record. It is impugned in Civil Revision No. 48 of 2021. 10. Heard learned counsel for the parties and perused the record. 11. Learned counsel for the revisionists has raised the following points:- (I) This Court in A.O. No. 80 of 2016 had directed that the land be admeasured through Court Amin and it was not done. It is impugned in Civil Revision No. 48 of 2021. 10. Heard learned counsel for the parties and perused the record. 11. Learned counsel for the revisionists has raised the following points:- (I) This Court in A.O. No. 80 of 2016 had directed that the land be admeasured through Court Amin and it was not done. (II) In Civil Revision No. 107 of 2017, this Court had observed that "Trial Court may seek assistance of revenue authorities for the purpose of identification of land in question, if need be." The court could have taken assistance from the revenue authorities but the entire task of survey could not have been assigned to the revenue authorities alone.(III) The dispute was with regard to identification of the land, for which purpose the survey could not have been conducted without ascertaining the fixed points. In the instant case, fixed points have not been established. 12. On the other hand, learned counsel for the respondents, who appeared as caveators, would submit that Commission was rightly issued in the case. In compliance to the order dated 01.03.2016 passed in A.O. No. 80 of 2016 by this Court, commission was issued to the Court Amin but he could not conduct the commission and the report was accordingly forwarded to this Court (this fact finds mention in the impugned order dated 23.01.2021 at para 6). 13. Learned counsel for the respondents raised the following points also:- (I) The issue was with regard to measurement of the land in possession of the parties, therefore, the task was given to the revenue authorities and by doing so, no irregularities have been committed. (II) The revenue authorities, who are well acquainted with the procedure of measurement of the land have measured the land and submitted the report, which is in accordance with law. 14. In so far as the directions of this Court passed on 01.03.2016 in A.O. No. 80 of 2016 is concerned, it has lost its significance because that order was passed by this Court when the Appeal from Order was pending. Finally the Court Amin could not submit its report and the impugned para 6 records that this fact was intimated to this Court on 08.04.2016. Fact remains that the Appeal from Order No. 80 of 2016 was dismissed on 28.04.2016. Finally the Court Amin could not submit its report and the impugned para 6 records that this fact was intimated to this Court on 08.04.2016. Fact remains that the Appeal from Order No. 80 of 2016 was dismissed on 28.04.2016. So, who was to issue Commission cannot be determined on the basis of the order dated 01.03.2016 passed in A.O. No. 80 of 2016. 15. It is true that in Civil Revision No. 107 of 2017, the Court while dismissing the revision raised concern as to how the dispute could be resolved and observed that since the controversy revolves around the identification of the suit land, trial court may seek assistance of the revenue authorities for identification of the land in question. The word "assistance" cannot be construed to limited extent that the revenue authorities may be given a limited role. It was the discretion of the court to issue Commission to a person, who is acquainted with the skill of conducting survey in a particular manner, under the facts and circumstances of a particular case. 16. On behalf of the respondents, it is being submitted that as such survey was not involved in this case. The area of land under the possession of the parties was to be ascertained. 17. This argument does not merit acceptance for the simple reason that it was not a simple case of measuring the land in possession of a party. The issue was of identification. The report of the Commission is Annexure 12 in Civil Revision No. 48 of 2021. The Commission was executed by various revenue officers/officials and they have submitted their report. Point No. 6 in the report reveals that, in fact, the land was measured in the light of its position in the map and it records that the measurement was done after leaving 0.70 Kari from mid of the road as per the map. The Commission report has been accepted by the impugned order dated 25.03.2021. In para 11, 12 and 13 of this impugned order, the court has dealt with as to how the measurement should have been done? From which point of the road it should have been measured? 18. Learned counsel for the respondents could not show from the Commission report that any fixed point was ascertained before conducting the survey or measuring the specific plot. The issue is with regard to identification. From which point of the road it should have been measured? 18. Learned counsel for the respondents could not show from the Commission report that any fixed point was ascertained before conducting the survey or measuring the specific plot. The issue is with regard to identification. It is not simplicitor measurement of any plot. Identification of land can be done qua map and the position of a disputed land has to be established as per map. Needless to say, for this purpose fixed points have to be established so as to locate a particular piece of land. But, the Commission report in the instant case does not reveal that any such effort was made, though some measurements have been given. 19. During the course of arguments, learned counsel for both the parties agreed that in the instant case Commission may be issued with the direction that after ascertaining the fixed points, the disputed land may be located and measured. Both the learned counsel for the parties have submitted that Sri Sudhir Kumar, a practicing Advocate of this High Court, may be appointed as Commission in this case, who may conduct the survey and submit the report with regard to the disputed land. Sri Sudhir Kumar is in the Court. He accepts the proposal as offered by the learned counsel for both the parties. 20. What is stated by the learned counsel for both the parties by way of suggesting the name of a lawyer to conduct the survey will be adverted to in a little while. 21. The Court is dealing with two revisions by which two separated orders passed in the suit have been challenged. One is the order dated 23.01.2021 by which Commission was issued and another is order dated 25.03.2021, by which the Commission report has been accepted. 22. In so far as the issuance of Commission is concerned, the Court does not find any irregularity in it, although the detailed directions should have been avoided to the Commission. The simple issue is identification of the disputed land alone and not other land. Beyond which the directions are definitely beyond the jurisdiction and not necessary for disposal of the suit. 23. In so far as the impugned order dated 25.03.2021 is concerned, the Commission report has been accepted which purportedly surveyed the disputed land, measured it and submitted a report. Beyond which the directions are definitely beyond the jurisdiction and not necessary for disposal of the suit. 23. In so far as the impugned order dated 25.03.2021 is concerned, the Commission report has been accepted which purportedly surveyed the disputed land, measured it and submitted a report. But, the report does not reveal that before conducting the survey any fixed point was established by the Commission. For this reason, the Commission report ought to have been rejected straightway. Therefore, impugned order dated 25.03.2021 deserves to be set aside and as stated, the impugned order dated 23.01.2021 deserves to be modified. 24. The impugned order dated 25.03.2021 is set aside. 25. In order to identify the disputed land, the Commission is issued in the name of Sri Sudhir Kumar, a practicing Advocate of this High Court, who shall identify the disputed land in the suit and submit his report to the court concerned. The revenue authorities/consolidation authorities shall be duty bound to assist Sri Sudhir Kumar, Advocate for conducting the survey. 26. The impugned order dated 23.01.2021 is modified accordingly. 27. When learned counsel for the parties were asked about the remuneration of the Commissioner, Sri Sudhir Kumar, Advocate gives a statement that he will not take any remuneration for conducting the Commission. 28. The revisionists shall bear all the travel related and other expenses of Sri Sudhir Kumar, Advocate for conducting the Commission. 29. Both the revisions stand disposed of accordingly.