Hon’ble Sudhir Agarwal, J.—Heard Sri R.C. Singh, learned counsel for the appellant and Dr. G.S.D. Mishra, learned counsel appearing for respondents.

2. The plaintiff-appellant instituted Original Suit No. 216 of 1967 seeking injunction in respect to property in dispute that defendants-respondents should not interfere in the peaceful possession of plaintiff-appellant and should also remove the illegal construction raised thereon. It was pleaded that plaintiff-appellant is cultivator-Sirdar on plot No. 1492/2, measuring 1 Bigha, situate in Village Paigamberpur, Pargana Jhunsi, District Allahabad. The property in dispute has nothing to do with defendants-respondents still they are raising construction thereon and interfering with possession of plaintiff-appellant.

3. The Trial Court dismissed suit vide judgment dated 11.9.1969 by deciding issues No. 1 and 2 against plaintiff-appellant holding that he could not demonstrate that he owned or was in possession of disputed plot or that the same formed part of plot No. 1492/2 of which he claimed to be the cultivator-Sirdar. Moreover from the pleadings of plaintiff-appellant it was also evident that disputed land was being utilised by defendants-respondents after raising their construction etc. and in absence of any evidence or proof shown by plaintiff-appellant to demonstrate that said construction was in respect to land which formed part of plot No. 1492/2, the injunction, as sought, by plaintiff-appellant cannot be granted.

4. The aforesaid findings in respect to issues No. 1 and 2 has been confirmed by Lower Appellate Court by dismissing plaintiff-appellant’s Civil Appeal No. 43 of 1970 vide judgment dated 31.10.1975.

5. It appears that during pendency of matter before Lower Appellate Court, a Survey Commissioner was appointed who submitted report on 25.4.1972. Another Commissioner’s report was also obtained by Lower Appellate Court on 20.4.1973. However, the aforesaid reports could not demonstrate either possession of plaintiff-appellant on property in dispute or that the land in question formed part of plot No. 1492/2, of which only, the plaintiff-appellant, claimed to be cultivator-Sirdar and, hence, aforesaid reports could not render any help in deciding issue in favour of plaintiff-appellant. The Lower Appellate Court, therefore, confirmed findings recorded by Trial Court.

6. The following substantial questions of law were framed by this Court vide order dated 28.7.2010:

(I) Whether the report of Survey Commissioner having been called for by the Lower Appellate Court, accepted and confirmed, it was beyond the jurisdiction of the (successor) Lower Appellate Court to have held that the acceptance thereof was improper?

(II) Whether in the facts and circumstances of the case the provision contained under Sections 189 and 190 of U.P. Z.A. and L.R. Act, 1951 (hereinafter referred to as the “Act, 1951)”) could have been pressed into service especially in view of the fact that there was no pleading by the defendant?

7. Subsequently, this Court, vide order of date, added the following more substantial questions of law:

(III) Whether objections having been filed against the report of the Survey Commissioner, having been rejected and the report having been confirmed, the correctness thereof could be challenged at any subsequent stage of the appeal in view of the law laid down in Satyadhyan Ghosal and others v. Smt. Deorjin Debi and another, AIR 1960 SC 941?

(IV) Whether it was not incumbent upon the plaintiff-appellant to examine the Lekhpal under any provision of law and the demarcation of plot No. 1492/2 must be presumed at law to correct unless proved to contrary?

(V) Whether there is a presumption of legality about the demarcation under Chapter V of U.P. Land Records Manual and it was for the respondents to have proved to the contrary?

(VI) Whether demarcation of plot No. 1492/2 could have been discarded by the Lower Appellate Court on mere speculation and reasons not germane