IMPORTANT POINT
Court should get the property surveyed by a survey commissioner when dispute is regarding identity of property.

S.U. Khan, J.—Heard learned counsel for the parties.

2. This second appeal was admitted on 13.12.1985 by the following order:

“Admit. Issue notice.

The only substantial question which arises for consideration in this appeal is whether the lower appellate court has declined to issue a Survey Commission sought by the appellants by means of an application dated September 5, 1985 (Paper No.30C) on legally permissible grounds.”

3. This is plaintiffs’ second appeal arising out of O.S.No.34 of 1981, which was dismissed on 24.08.1982 by Munsif, Court No.7, Shahjahanpur. Against the said decree, plaintiffs filed Civil Appeal No.106 of 1982, which was dismissed by IV A.DJ., Shahjahanpur on 10.09.1985, hence this second appeal.

4. Defendant respondent No.4, Abhivaran Singh was owner/bhoomidhar of some land. First, he sold a part of his land to the plaintiffs on 09.05.1978, which was comprised in Plot No.272, area 0.35 acres. Thereafter he sold some property on 21.08.1979 to defendants No.1 to 3, which according to the plaintiffs included part of the land which had earlier been sold to the plaintiffs and which was comprised in Plot No.272.

5. The trial Court held that the plaintiffs could not prove that land purchased by defendants No.1 to 3 was part of Plot No.272, which had been sold to them.

6. The lower appellate court held that the trial court was wrong in holding that the suit was barred by Section 34 of Specific Relief Act as prayer for possession in the alternative had also been made in the plaint. However, lower appellate court held that on the said basis the decree of the trial court could not be reversed.

7. Before the lower appellate court plaintiffs appellants filed an application on 05.09.1985 for survey of the property in dispute through a Survey Commissioner. Lower appellate court in its judgment held that the said prayer could not accepted as it was made at a very late stage.

8. Lower appellate court held that plaintiffs did not file their sale deed. However, plaintiffs’ sale deed was not questioned by anyone. They had asserted that they purchased property of Plot No.272. Defendants No.1 to 3 categorically stated that the property which they purchased in 1979 did not include any part of Plot No.272. Accordingly, the only dispute in between the parties was as to whether property in dispute was part of Plot No.272 or not? As far as the question of delay in applying for getting the property surveyed is concerned, in this regard learned counsel for the appellants has cited an authority of this court reported in Gajraj and others v. Ramadhar and others, AIR 1975 All 406 and an authority of the Supreme Court reported in Sripat v. Rajendra Prasad, JT 2000(7) SC 379. In the latter authority, Supreme Court held that trial court should have got the property surveyed when the dispute was regarding identity of the property. Supreme Court allowed the appeal, set aside the decrees and orders passed by trial court, lower appellate court as well as High Court and remanded the matter to the trial court.

In the High Court authority it has been held that appellate court can also issue Commission for survey.

9. Accordingly, second appeal is allowed. Substantial question of law is decided in favour of the appellants. Judgment and decree passed by the lower appellate court is set aside. Matter is remanded to the lower appellate court to decide the appeal afresh after providing opportunity to the plaintiffs appellants to get the property surveyed through survey commissioner. Both the parties are directed to appear before the lower appellate court on 18.07.2012.

Appeal allowed.

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