Ilam Chand And Others ... ... vs Shiv Narayan Agarwal And Others
2021 Latest Caselaw 1355 UK

        HIGH COURT OF UTTARAKHAND
                AT NAINITAL

              Writ Petition (M/S) No. 171 of 2019
Ilam Chand and others                              ...       Petitioners

                            Vs.
Shiv Narayan Agarwal and others                    ...       Respondents
Advocates :    Mr. Tapan Singh, Advocate, for the petitioners.
               Mr. Nikhil Singhal, Advocate, for the respondents.


Hon'ble Sharad Kumar Sharma, J.

Heard Mr. Tapan Singh, learned counsel for the petitioners and Mr. Nikhil Singhal, learned counsel for the respondents.

2. Brief fact, which engages consideration in the present writ petition are that one late Lala Har Prashad, who was the father of the respondent Nos. 1 to 8, had filed a SCC suit; being a SCC Suit No. 82 of 1975, Lala Harprasad Vs. Radheyshyam and others, i.e. the predecessors of the present petitioners. The said SCC suit, which was thus preferred, the plaint averments (as contained in Annexure 1 to the writ petition), a decree was sought in the nature for eviction and recovery of arrears of rent, as prayed for therein in relation to the property, i.e. the tenement in question which was more appropriately described in the said suit, which is extracted hereunder:-

**lwph oknxzLr lEifRr nks fdrs nqdkukr iq[rk okds xzke vkluckx ¼gjcViqj½ ijxuk iNok ftyk nsgjknwu ftldh lhek,a fuEu izdkj gSa%& if"pe & lgkjuiqj & pdjksrk jksM] mRrj ea & oknh dh vU; lEifRr tks cdCts fdjk;snkjh Mk0 vkse izdk"k ds gS] nf{k.k esa xyh o ckngWw nqdku lqUnj yky gyokbZ] iwoZ esa & vU; lEifRr oknh g0 & gjizlkn oknh**

3. The SCC suit in question, which was instituted as back as on 09.06.1975, the same was contested by the defendants

(petitioners herein), by way of filing a detailed written statement on 30.05.1977, denying the plaint averments. On exchange of the pleadings, the learned SCC Court, after considering the rival contentions of the parties to the proceedings under Section 15 of the Provincial Small Cause Courts Ac, had framed the following points of determination, to decide the controversy as raised by the parties to the proceedings:-

**mHk;i{kksa ds vfHkopuksa ds vk/kkj ij okn esa fuEufyf[kr okn fcUnq cuk;s x;s& 1- D;k oknh okni= ds vfHkdFkuksa ds vuqlkj vdsys HkwLokeh gS\ 2- D;k izfroknh la- 3 ls 6 oknxzLr lEifRr esa lg fdjk;snkj gSa\ 3- D;k izfroknh la[;k 3 ls 10 us vius fdjk;snkj ds vf/kdkj NksM fn;s gSa\ 4- D;k izfroknh la[;k 10 oknxzLr lEifRr dh lgLokeh gS ;fn gka rks izHkko\ 5- D;k uksfVl fnukafdr 11-2-1975 voS/kkfud gS\ 6- D;k oknxzLr lEifRr ij ;w0ih0,DV 13 o'kZ 1972 izHkkoh gS\ 7- D;k oknh oknxzLr lEifRr ds vukf/kd`r mi;ksx dh ckcr gtkZuk ikus dk vf/kdkjh gS ;fn gka rks fdl nj ls\ 8- D;k izfroknh la[;k 10 ij uksfVl dh rkehy ugha gqbZ gS\ 9- oknh fdl vuqrks"k dk vf/kdkjh gS\ 10- D;k oknh la[;k [email protected] rk [email protected] oknh gjizlkn ds okfjl] mRrjkf/kdkjh ugha gS rFkk mUgsa okn pykus dk vf/kdkj izkIr ugha gS\**

4. One of the point of determination, which was raised therein, was with regards to the determination of point No. 4, it was the establishment of the relationship of landlord and tenant and whether the plaintiffs or defendant No. 10 happens to be the landlord of the property in question?

5. The said Suit, after the exchange of the pleadings was decided by the Court of Additional District Judge, vide its judgement dated 29.09.2011, who had allowed the revision, being SCC Revision No. 15 of 2006, Shiv Narayan and others Vs. Radhey Shyam and others, preferred against the judgement of the Judge, Small Causes Court, which was rendered on 02.05.2006 in the aforesaid SCC Suit being Suit No. 82 of 1975. Consequently, the matter was remanded to the trial Court for its fresh determination, as per the directions contained in the judgment of remand dated 29.09.2011.

6. The learned Revisional Court, while reversing the judgement of Judge, Small Causes Court, vide its judgment dated 29.09.2011, had passed an order of remand and particularly, the directives as given in the order of remand was contained in the following paragraphs of the aforesaid judgement which is extracted hereunder:

----------esjs fopkj ls fo}ku fopkj.k U;k;ky; dh bl rF;kRde fLFkfr ij gLr{ksi djus dh dksbZ vko";drk ugha gS cfYd ;g mfpr gksxk fd bl ekeys dks iqu% fopkj.k U;k;ky; dks fjek.M fd;k tk;s vkSj fopkj.k U;k;ky; nksuksa i{kksa dk lk{; dk volj nsdj vkSj l{[email protected]/kdkfjd losZ;j ls bl ckr dk losZ djk dj lk{; vkus ds ckn bl fcUnq ij fu'd'kZ nsafd fd iz"uxr lEifRr uxjikfydk dh lhek ds 3 fdyksehVVj ds vUnj gS vFkok ugha vkSj fQj okn fcUnq la0 6 ij viuk vfHker O;Dr djsaxsA vr% esjs fopkj ls okn fcUnq la0 6 ij fopkj.kU;k;ky; ds fu'd'kZ vkSj vuqrks'k ls lacaf/kr okn fcUnq la0 9 dks vikLr djrs gq, mDr ekeyk fopkj.k U;k;ky; dks fjek.M fd;k tkuk mfpr gksxkA "ks'k okn fcUnqvksa ij fopkj.k U;k;ky; }kjk fn;s x;s fu'd'kZ dks vikLr djus dh vko";drk ugha gSA bu nksuksa okn fcUnqvksa ds fu'd'kZ ls gh lEiw.kZ okn dk fuLrkj.k gks tk;sxkA "ks'k okn fcUnqvksa ij fopkj.k U;k;ky; ds fu'd'kZ dks iq'V fd;k tkrk gS**

7. In fact, while passing an order of remand, if the aforesaid para as referred to above, if it is taken into consideration, the learned Revisional Court has directed for the conduct of survey by "competent/official surveyor".

8. It is on the revival of the proceedings before the Judge, Small Cause Court, that the plaintiff/respondent herein had filed an application, praying for conducting the survey as it has been directed by the judgement of remand of the property in dispute, which as per the records, was shown to have been conducted by an Amin of the District Court and the report in that regard was also submitted in the proceedings of SCC Suit No. 82 of 1975, Har Prasad Vs. Radhey Shyam, which was numbered as an exhibit as paper No. 28(ga).

9. If the findings which had been recorded therein are taken into consideration in the report thus submitted on 16.09.2014, which was numbered as paper No. 28(ga), in fact, the Amin has submitted the report after holding the spot inspection after prior notice, in which, admittedly the petitioners had participated in the proceedings of inspection by Court Amin, when the report was submitted along with the map, identifying the property in dispute, which was the subject matter of the proceedings of the SCC Suit No. 82 of 1975, Har Prasad Vs. Radhey Shyam.

10. Based on the said report, the Judge, Small Causes Court/3rd Additional Civil Judge (Senior Division), Dehradun by the judgement dated 21.11.2015, had decreed the suit and had directed the present petitioners to vacate the premises and also to remit the arrears of rent, due to be paid w.e.f. 01.02.1975 till 15.03.1975, and thereafter, the damages also as was imposed w.e.f. 28.03.1975 till the date of the decision of the SCC suit @ Rs. 100/- per day.

11. Aggrieved against the said judgement dated 21.11.2015 of decreeing the suit, a SCC Revision, being SCC Revision No. 2 of 2017, Shri Ilam Chand and others Vs. Shri Shiv Narain Aggarwal and others, was preferred by the petitioners under Section 25 of the Act by the present petitioners and the SCC Revision was also dismissed by the judgement dated 05.12.2018 by the Court of Additional District Judge, Vikas Nagar, Dehradun.

12. Being aggrieved against the aforesaid impugned judgements, the present writ petition has been preferred by the petitioners/tenants praying for quashing of the aforesaid judgements and for the dismissal of the suit, preferred by the predecessors of the respondents.

13. The learned counsel for the petitioners had primarily objected to the aforesaid judgements, which are impugned in the present writ petition on the premise that if the judgement of remand, as was rendered by the Revisional Court dated 29.09.2011, is taken into consideration and particularly, the excerpt which has been quoted above, his argument would be, that there was specific intention which had been expressed by the Court of Additional District Judge, Dehradun, in its judgement dated 29.09.2011; that the spot inspection, which was directed to be conducted, as a consequence of the judgement of remand, was to be done by the official surveyor, and since as per the report paper no. 28(ga), the survey was not conducted by an official surveyor; as directed therein in the judgement dated 29.09.2011, it would vitiate the entire proceedings and hence the judgement rendered would be contrary to the directives issued to by the order of remand dated 29.09.2011 of the Revisional Court.

14. The learned counsel for the petitioners further submitted that the Amin's report, which has been taken as to be the foundation and the basis to render the present impugned judgements run contrary to the report, which was earlier taken into consideration by the Revisional Court by the judgement dated 29.09.2011, for the reason being that the distances as expressed by the report, which was referred to in the judgement, which has been extracted hereinabove, and particularly, a reference was made to paper No. 263(ga), where the distance of the existence of the road is shown to be 3.18 km, and hence his argument would be that the Amin's report, which has been submitted subsequently, after the order of remand runs contrary to the earlier report, which was already on record before the

Revisional Court, prior to, its rendering of the judgement of remand i.e. paper No. 263 (Ga).

15. He further submitted that for the purposes of an effective adjudication and to meet the intention of the judgement of remand, it was incumbent on the Court, itself that it ought to have ensured to get the survey conducted through an official surveyor or as per the tenacity of argument, which has been expressed by the learned counsel for the petitioner; it would be exclusively only inclusive of the surveyors as functioning with the Surveyor General of India. Hence, he submitted that, in pursuance to the remand order there being a non-adherence of the directions given by the Revisional Court, the judgements cannot be sustained in the eyes of law and deserves to be quashed.

16. On the contrary, the argument, which has been extended by the learned respondent's counsel, is from the perspective that the argument of the learned counsel for the petitioners, according to his submission, is not sustainable for the reason being that, if the order of remand dated 29.09.2011, itself is taken into consideration, where the Revisional Court has specifically mentioned "Saksham/Official Surveyor". This would include within its ambit the Courts Amin also, who had submitted the report paper No. 28(ga) on 16.09.2014, which has been taken as to be the basis for deciding the SCC suit in question.

17. Even otherwise also, if the judgement dated 29.09.2011, is exclusively taken into consideration, this Court is of the view that the learned Revisional Court, at the time of passing of an order of remand dated 29.09.2011, was conscious of the fact that the requirement of conducting a survey again was necessitated while passing an order of remand, because the earlier report, which was

already there under consideration in the first phase of the proceedings was not specifically relied with by the Revisional Court and that is why the necessity was felt by the Revisional Court; in its judgement dated 29.09.2011, to remit the matter to the trial Court decide the issue afresh after calling for a fresh report.

18. The very fact that when the Court has remanded the matter, directing the Amin or Surveyor to conduct the inspection afresh, it would amount to that by its logical implications, the earlier report, which was the subject matter of the proceedings which stood culminated by the judgement dated 29.09.2011, no credibility to the said earlier report was given by the Court and hence, the argument extended by the learned counsel for the petitioner by drawing the attention of this Court to the findings which had been recorded to the earlier reports, particularly, as referred therein being paper No. 262(ka), I am of the view that said reports and its contends, now cannot be extracted to be read into evidence for deciding the matter, now after an order of remand dated 29.09.2011, because the observations made as referred therein above would amount to that the findings recorded in relation to the said report had already been laid to rest.

19. The reason for not accepting the argument of the learned counsel for the petitioner is that, if logical interpretation is given to the findings of the judgment dated 29.09.2011, where the Court has deliberately, with its clear intention has used the word "competent/official surveyor", it would amount to that inspection, which was expected to be conducted after remand, by the trial Court, it was left open to be performed by either of the competent authority, which has been referred to in the Revisional Court's order dated 29.09.2011. Meaning thereby, by its

implications, no specific bar as such was being created by the judgement of remand; that the inspection cannot be conducted by the 'Amin' and that it was exclusively required to be conducted by an 'Official Surveyor' as it has been argued by the counsel for the petitioner.

20. There is another logic for not accepting the argument of the learned counsel for the petitioner to the effect that the judgements impugned suffer from vices of not being in strict compliance of the judgement of remand, it is for the reason being that his argument that the Official Surveyor of Survey General of India was required to conduct a survey for deciding an SCC suit, which determine an interse relation of landlord and tenant on account of termination of a tenancy it does not entails a meticulous statistical survey, to be conducted with precision for the purposes of deciding a lis and hence his contention that the survey should and ought to have been conducted by an Official Surveyor of the Surveyor General of India, is absolutely preposterous and contrary to the very intention of the legislation and order of remand, where the tenancy is being intended to be terminated by invoking the provisions contained under Section 106 of the Transfer of Property Act.

21. The learned counsel for the respondent had submitted that the argument which has been extended by the learned counsel for the petitioner while referring to the judgment dated 29.09.2011, i.e. the judgement of remand may not be sustainable in the eyes of law and particularly for the purposes of deciding the present writ petition, because as against the impugned orders, which has been concurrently rendered by both the Courts below, which is on the basis that when on the revival of the proceedings before the trial Court, on the basis of an order of remand, was taken up

again, the respondent/landlord had filed an application for appointment of an Amin /Surveyor for conducting an inspection. This application was considered by the learned Judge, Small Causes and an order was passed on it appointing Court Amin for inspection and the argument which has been extended by the learned counsel for the respondent is that the order of appointing a Court's Amin; to conduct an inspection, was never put to challenge by the petitioner nor ever was assailed by the petitioner, in any independent proceedings before any superior Court, and hence his argument would be that once an application itself and the order of appointment of an Amin to conduct an inspection was not made as the subject matter of challenge by the petitioner, the presumption would be that the petitioner has submitted to the order without giving a challenge to the order of appointment of an Amin to conduct the inspection.

22. He further submitted that the petitioner cannot be permitted to take the liberty to argue at this stage about the competence of an Amin to conduct inspection, which he had conducted on 16.09.2014, on the ground that if the Amin's report itself is taken into consideration, the petitioner was noticed, he participated in the proceedings, and thereafter, the report was submitted before the Court below, which was numbered as paper No. 28(ga).

23. Its not only that, it is further argued by the learned counsel for the respondent, that the tenacity or the contents of the report itself was accepted by the learned counsel for the petitioners for the reason being that if at all for any genuine reasons, he had his grievances, if any, as against the report paper No. 28 (ga), as submitted by the Amin on 16.09.2014, then under the procedural law, he was expected and he ought to have filed an objection against the said report, but having not done so, and having not

avail an opportunity to object to the contents of the said report, he cannot be permitted to take the liberty now by way of a stand taken in the writ petition, as of now that the said report of 16.11.2014, cannot be taken into consideration for deciding the SCC suit, particularly, when he has not challenged the order of appointment of Amin to conduct the inspection and also the contents of the report by filing an objection.

24. The learned counsel for the respondent, particularly, had drawn the attention of this Court to the findings, which has been recorded by the learned Judge, Small Causes in para 22 of the said judgement and a reference has been made that though the objection was taken by the petitioner with regards to the competence of the Amin to submit the report, the Court has recorded the finding while considering his objection, that the Amin who has conducted an inspection, may not be that he was a surveyor, according to his own statement but inspection which was conducted by him, since was participated by the petitioner and expected by the petitioner he cannot take a somersaulted stand at a belated stage of the proceedings, challenging the competence of the Amin's report, which had been the basis for deciding the proceedings by the Court below, particularly, when he had participated in the inspection conducted by the Amin.

25. In response to the arguments which has been extended by the learned counsel for the respondent, the learned counsel for the petitioner had placed reliance on certain authorities in support of his contention. Chronologically, the reference may be had to a judgement reported in AIR 1948 All 299, Rex Through Subedar Singh Vs. Jokhu anad Another. He has drawn the attention of this Court to the contents of para 3 of the said judgment, which is extracted hereunder:-

"3. The learned Magistrate wag satisfied on the evidence that the distance of the point at which the respondents had admittedly worked a ferry, namely, Gauri Ghat, from Dharahra Ghat was less than two miles and the learned Additional Sessions Judge also accepted that evidence as correct. We have also looked through the evidence and are satisfied that the distance between Dharahra Ghat and Gauri Ghat is less than two miles. The distance was actually measured by the District Board Overseer, Shyam Adhar Singh, and according to his report the distance is one mile, five furlongs and six hundred and twenty feet. A rough measurement was also made by Sub-Inspector Mathura Singh. He however made the measurement by paces. There is also the evidence of the patwari that the distance between the two places is less than two miles. We see no reason to disagree from the finding arrived at by the Courts below in regard to the shortest distance between these two points. The learned Additional Sessions Judge however is of opinion that for the purposes of Section 13 of the Act the distance should be measured along the river. He found that the distance between the two points along the water of the river was more than two miles and in this view of the matter he found that the respondents had committed no offence under the Act."

26. The finding recorded in para 3 of the aforesaid judgment, with regards to rough measurement, which was then conducted by the Sub Inspector, Mathura Singh, at that point of time, was contemplated to be conducted under Section 13 of the Northern Indian Ferries Act, 1878, in which the Sub Division Magistrate, Banaras, had been pleaded guilty and was convicted in the proceedings which were filed under Sections 25 and 26 of the said Act, because there the report was submitted pertaining to the Dharahra Ghat on river Gomti in District Banaras, under the provisions of Northern Indian Ferries Act, 1878. Hence, the interpretation given therein for the purposes of attracting its principles in the present case would not apply for the reason being that, it was a prosecution which was initiated as against the SDM, who was found guilty under Sections 25 and 26 of the Act, and hence, a mis-measurement or a rough measurement, which was found as to be the basis of the foundation of a conviction of an officer cannot be a precedent for determining the competence of an authority of an Amin and for the purposes of deciding as to

whether in the present circumstances of the case the survey was to be conducted specifically by the surveyor as already dealt with above particularly, in relation to the proceedings under the Provincial Small Cause Courts Act.

27. This contention of the learned counsel for the petitioner, as per the view of this Court, is not acceptable, for the reason being that once a counsel or a party to the proceedings, takes a plea to question the competence or an authority to conduct an inspection then it is a specific burden which is casted upon the person, who takes a plea in defence to substantiate his argument, supported with the statute about the competence of an authority, to conduct an inspection as directed by the order of remand.

28. When the matter was taken on the previous occasion, this Court called upon the counsel for the petitioner to place on record any law, rule, regulations, which enshrines or describes the distinction between the Amin and Official Surveyor as alleged and their ambit of exercise of powers to conduct an inspection, this Court feels sorry to observe that no such material, was ever placed thereafter on record by the learned counsel for the petitioner, who tries to draw a distinction through his arguments that Amin was not competent to submit the report in compliance of the order of remand dated 29.09.2011, and hence this Court will have to revert back its finding on the basis of the observations which has been made in the order of remand where the scope of survey was left to be done by the competent authority/official surveyor.

29. The second judgment, on which the learned counsel for the petitioner has placed reliance is that as was rendered by the High Court of judicature at Allahabad in First Appeal No. 431/2006,

Sita Ram Vs. Raju Agarwal and Another. Even if the said judgment, which was rendered by the Division Bench of the Allahabad High Court, is taken into consideration, it was a case where the Surveyor's report, was taken into consideration, which was conducted by the Advocate Commissioner and it was the effect and the impact of his cross examination which was being dealt with in the said judgement as to the manner in which he has prepared a field book at the time of survey commission which was conducted by him. A reference in the said judgment was also made to yet another authority of Allahabad High Court reported in 1979 ALJ 55, Chandra Pal and others Vs. Roop Rama and others.

30. With all respectful submissions, I am not in agreement with the principles as observed therein which has been sought to be applied in the facts and circumstances of the present case, because admittedly, in that case, both appellant, as well as the defendant had not filed any objection to the report of the Amin Commissioner, which was under consideration therein i.e. dated 25.10.2012, and that was the findings which were recorded by the Division Bench of the Allahabad High Court, and in that eventuality, in the absence of there being a challenge given to the competence of the order of appointment of Amin to conduct inspection and inspection report submitted by the Amin, a bar of estoppel would be attracted as the against the petitioner herein also because it was at the first instance itself, when the Amin was appointed by the Court or at the second instance, when the report was submitted by the Amin, that he ought to have diligently availed an opportunity to challenge the competence of the Amin to submit the report, after the order or remand.

31. The third judgement, on which reference has been made by the learned counsel for the petitioner is that as reported as 2005 (2) SCC 286, Deb Narayan Shyam and others Vs. State of West Bengal and others. The learned counsel for the petitioners had particularly drawn the attention of this Court to the contents of para 14 of the said judgment, which is extracted hereunder:-

"14. It may also be relevant to mention here that the note given below this is very significant and it has been clearly mentioned that the last categories of qualification mentioned in (iii), (iv) and (v) of the Surveyors are not being recruited since 1981. That shows that the Surveyors with certificate from Survey School, school final with Practical experience and with practical experience are not recruited since 1981. Therefore, any reference to them subsequently will be of no consequence as we will deal with that while dealing with the finding given by the Division Bench of the High Court that since the qualification of these posts are almost equivalent to the Amins, therefore, they should be given the pay scale No.7, was not justified. However, we will advert to this aspect subsequently. All these materials which have been placed by both the sides and which have been reproduced above, would show the contentions of the rival parties. Therefore, the materials which are on record categorically show the distinction has already been brought between the posts of Amins and Surveyors and their nature of duties and functions are also separate. The Technical Rules and Instructions relating to survey work indicate that Surveyors use more sophisticated equipment involving superior training and skills than Amins. Surveyors use Theodolite for conducting traverse survey requiring knowledge of trigonometry and they are also trained in the use of equipment for the measurement of automatic levels and electronic distance measurement. The Surveyors have to undergo a two- year specialized training in different kinds of surveying such as Topographic and Hydrographic surveying and Mine surveying, and are also trained in mechanics and drawing. On the other hand, the Amins are given training in simple survey work and in the use of relatively simple equipment such as Guntur's chain, plane table, optical square. It is true that both Surveyors and Amins undertake the survey work but the nature of duties discharged by both of them are different The Surveyors are technical persons and the Amins are non-technical persons. The Surveyors are fully qualified in the engineering surveys whereas the Amins are not supposed to be so qualified. Therefore, looking to the nature of duties which is being discharged and the instructions which have been issued go to show that the Amins and Surveyors are not discharging identical duties. Therefore, from the nature of duties and the qualifications required for both the posts, it is absolutely clear that they are separate and it is not wrong when it was submitted that the work of Amins starts after the work of Surveyors ends. The Technical Rules and Instructions of the Settlement Department as mentioned above, clearly show that the work and duties which are being discharged by the Surveyors are of technical nature by use of sophisticated instruments as against the Amins who do the job with the aid of relatively simple equipment as

they are not equated with that of the Surveyors. The qualifications prescribed for the Surveyors and Amins are also different. The Surveyor is supposed to be a technically trained person and as against this, the Amin need not be. The Amins have to undergo related course of a duration of six months or so, as against the Surveyors' two years certificate course. Therefore, from the survey of this discussion we are of opinion that the Surveyors stand on superior footing than that of the Amins and they cannot be equated from the functional point of view as well as qualification point of view. Therefore, we are of opinion that the view taken by the Division Bench of the High Court that the Amins cannot be equated with the Surveyors is correct.

32. I am of the view that if the principles enunciated therein by superior Court, is to be taken into consideration to be applied in the present case, for the purposes of determination of a finding recorded by a superior Court for laying down, as to be a precedent to decide the matter, which is the subject matter of scrutiny in the proceedings before a Court, the factual backdrop as engaged in the case has always to be taken into consideration before any reference is made to the findings recorded therein in the judgement relied. If the judgment of the Hon'ble Apex Court in the matters of Deb Narayan Shyam (Supra) is taken into consideration, the factual backdrop of the said case was entirely distinct to the present case, as it was emanating from a service jurisprudence, where the issue of adjudication was parity of service benefits was sought on an equivalent basis vis-a-vis its payability for Amin and the Surveyor and where the principle was sought to be decided by the Court, under the Civil Rule of 340 of 1982; as it has been referred in para 3 of the said judgment and hence, the finding extracted to be relied in the present case, as in para 14 was recorded by the Hon'ble Apex Court at the stage when the distinction with regards to responsibility being discharged by the Surveyor and Amin was being taken into consideration, as per the law prevalent in the State of West Bengal, where the matter was subject matter of scrutiny with regards to the grant of parity of monetary service benefits, hence

I am of the view that the said principles would not apply for the purposes of determining the status of Amin and Surveyor qua their capacity and competence so far its applicability in the State of Uttarakhand is concerned, particularly, when it relates to a civil dispute.

33. Besides this, no other aspect has been argued by the learned counsel for the petitioner and in view of the facts that (i) he has not objected to the order of appointed of an Amin; (ii) he has rather voluntarily participated in an inspection, which was conducted by the Amin; (iii) he has not filed any objection to the report submitted by the Amin dated 16.09.2014. The petitioner would be bound by the report, which has otherwise attained finality.

34. It would also amount to that he has submitted to the very competence and procedure of conducting of an inspection by an Amin, in which he has candidly participated, without raising any objection. Hence, at this stage, he would be bound by the finding recorded therein based on the Amin's report in the judgments impugned.

35. Apart from it, no other point was pressed in by the learned counsel for the petitioners, the writ petition fails and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 07.04.2021 Mahinder/