IMPORTANT POINT
Identification of land can be done qua map and position of a disputed land has to be established as per map.

JUDGMENT (ORAL)

Ravindra Maithani, J.—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. 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.

(II) In Civil Revision No. 107 of 2017, this Court had observed that “Trial Court may seek assistance of re