Shreepat Vs. Rajendra Prasad & Ors.
EmailCivil Procedure Code, 1908
Order XXVI – Survey commissions – Suit by respondent for declaration and possession over a piece of land bearing Khasra No. 257/3 – Suit resisted on the ground that the land in occupation of Appellant does not fall within Khasra No. 257/3 – Suit decreed by trial court – Lower appellate court affirmed the decree – High Court upheld the decree in Second Appeal – SLP – Whether courts below correct in upholding the decree which passed without the assistance of any survey commission to ascertain the correctness of the respective claims. Held. No. It was not proper on the part of the courts below to uphold the decree without getting the identity of the land established by issuing some survey commission. Reliance of the courts below on the oral evidence was also rejected as not sufficient when a
serious dispute regarding the identity of the land was raised. Appeal allowed. Matter remanded to the trial court for fresh disposal.
1. Respondent No.1 – Rajendra Prasad had instituted a suit for declaration and possession over land bearing Khasra No. 257/3 against the Appellant on the ground that he had purchased this land from its previous owner – Premnarayan – by a registered sale-deed. It was further pleaded that the Appellant had forcibly taken possession and was trying to construct his house. The suit was resisted by the Appellant on the grounds, inter alia, that the land in dispute was not part of Khasra Plot No. 257/3, but was part of Khasra Plot No. 257/1 which was the Government land and over which the Appellant was in possession since long, it having been leased out to him. It was also pleaded that he had constructed the house over that land.
2. On a consideration of the evidence on record, the trial court decreed the suit. The decree was affirmed by the lower appellate court and upheld by the High Court in Second Appeal.
3. The principal contention raised by learned Counsel for the Appellant is that though there was a serious dispute with regard to the identity of the land in dispute, whether the land in dispute formed part of Khasra No. 257/3 or Khasra No. 257/1, the courts below did not get the identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for he purpose of establishing the identity of the land in dispute at the spot.
4. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No. 257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set side the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law.
