Allahabad High Court
Jawahar Lal vs Heera Lal on 30 October, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:207131
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 9495 of 2023
Petitioner :- Jawahar Lal
Respondent :- Heera Lal
Counsel for Petitioner :- Sushil Kumar Shukla,Jagdish Mishra
Hon'ble Jayant Banerji,J.
1. Heard Shri Sushil Kumar Shukla, learned counsel for the petitioner.
2. This petition has been filed seeking the following relief:
"i. quash the judgment and order dated 05.07.2023 (Annexure No. 6) passed by learned Additional District Judge/Special Court (POCSO)-I, Allahabad, on application no. 23-C filed in civil appeal no. 09 of 2022 (Jawahar Lal and others Vs. Heera Lal).
ii. Direct the learned appellate court for proper measurement of the map available on the record of appellate court, whereby the commission report has been prepared, which is the essential basis of impugned order dated 06.12.2021 passed by learned trial court.
iii. Any further order or direction as the Hon'ble Court may deem fit and proper to secure the ends of justice."
3. A copy of plaintiff's suit has not been filed in this petition. However, the petitioner who was the defendant in the aforesaid suit has referred to the judgment and order dated 6.12.2021 that was passed in Original Suit No. 795 of 1986 by the Additional Civil Judge (Junior Division), Room No. 10, Allahabad, whereby, the suit was decreed with cost. It is contended that the petitioner-defendant filed a civil appeal under Section 96 of the CPC bearing Civil Appeal No. 9 of 2022 for challenging the aforesaid judgment and decree dated 6.12.2021. In the aforesaid appeal, the petitioner filed an application 23C which, learned counsel for the petitioner states, is enclosed as Annexure No. 3 to this petition. In the aforesaid application, a prayer has been made for a direction to the Tehsildar, Sadar, to get the suit property measured by an expert and submit the report to the court. By means of the order dated 5.7.2023, the application 23C of the appellant was rejected.
4. The contention of the learned counsel for the petitioner is that the petitioner is running a school in the plot in question since past several decades and by means of the impugned order dated 5.7.2023, the innocuous request for getting the land measured was rejected by the appellate court and therefore, a short time may be fixed by the Court for getting the measurement of the plot in dispute done by the expert.
5. Having perused the order dated 6.12.2021 and the order impugned dated 5.7.2023, I find that the claim of the petitioner is not justified. In the suit aforesaid, the issue no. 1 was whether the disputed construction is situated on plot No. 500, area 6 biswa 7 dhoor and if yes, its effect. On behalf of the plaintiffs, a report of the Survey Commissioner, paper no. 167C was filed among other documents. While considering the report of the Survey Commissioner dated 28.3.2011, filed as paper number 167C, the trial court noticed that by the order dated 22.11.2012, the report of the Survey Commissioner was affirmed. That order was subject to challenge in Civil Revision No. 7 of 2013, which was dismissed by the order dated 19.9.2017 and the order dated 22.11.2012 was affirmed. After noticing the site plan enclosed with the survey report bearing paper number 167C/3, the trial court noticed the plot no. 500 is situtated East of Baraut Bithauli Road and South of the chakroad. The trial court further noticed that the Survey Commissioner had made a demarcation and had concluded that to the South of the chakroad is situated plot no. 500 and on that land, the construction in dispute was found. It was accordingly held that the defendant had constructed on the Eastern part of the plot no. 500, which was shown as alphabets ?, ?, ?, ? which was made during the pendency of the suit. In the impugned order dated 5.7.2023, the appellate court has noticed the observation made by the trial court with regard to the report of the Survey Commissioner and has noted that the same has become final. Accordingly, it was held that the survey proceedings had concluded and were affirmed and at this stage seeking measurements of the plot in dispute and for raising objections with regard to the area, are baseless and accordingly, the application 23C was rejected.
6. I do not find any error in the order impugned dated 5.7.2023 passed by the appellate court. It is always open for the petitioner to raise such arguments or avail of such procedure as provided in the CPC to which the petitioner may be entitled in the facts and circumstances. This petition is, therefore, dismissed.
Order Date :- 30.10.2023
A. V. Singh
(Jayant Banerji, J.)
