Smt. Ila Sah and Chandranath Sah vs Shyam Lal

B.S. Verma, J.—Heard learned Counsel for the parties and perused the record.

By means of this writ petition, the petitioners have sought the following relief:

i) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 6.5.2009 passed by the revisional court as well as the order dated 4-9-2008 passed by the trial court annexed as Annexure Nos. 9 and 7 to the writ petition.

ii) Issue an appropriate order or direction to the court below to allow the survey commission report dated 21.8.2007 and to accept the same on record (Annexure-5 to the writ petition).

iii) Issue a writ, order or direction, which this Hon�ble Court may deem fit and proper under the circumstances of the case.

iv) Award the cost of the petition.

By the order dated 4-9-2008, the Civil Judge (Senior Division)/F.T.C. Almora has rejected the survey commission report (paper No. 25-C) filed in Civil Suit No. 5 of 2008 Shyam Lal v. Ila Sah, on the ground that fixed points have been taken by the survey commission in the disputed property, while the fixed points can be taken outside the disputed property.

Aggrieved by the order dated 4-9-2008, the petitioner No. 1 filed revision bearing Civil Revision No. 11 of 2008 before the District Judge, Almora. The revisional court has dismissed the revision and upheld the order passed by the trial court. Liberty was given to the trial court that if the court is satisfied for just decision, it can issue direction for getting survey commission done by the parties.

A perusal of the record shows that the trial court rejected the survey commission report ( 25-C) on the ground that fixed points were not taken by the survey commissioner as per survey rules. The revision filed against the order dated 4-9-2008 was dismissed by the revisional court, but the revisional court has observed that the trial court may give direction for survey if it is satisfied. In the suit, evidence has to be led by the parties and full opportunity is yet to be given to both the parties to adduce evidence either oral or documentary including the survey commission report.

Learned Counsel for the respondent Mr. Arvind Vashist, Advocate, has informed the Court that an application was moved by the plaintiff-petitioner before the trial court, which was allowed on 21-4-2010 and the survey is under process.

In the above facts and circumstances, after the receipt of survey report, the petitioners may file objection, if they feel aggrieved by the survey commission report and the petitioners would be at liberty to make an application for issue of survey commission afresh, if so advised.

With the said observation, the writ petition is dismissed.