Original Suit No. 614 of 1998 · High Court · 2025

dismissing the suit which came to be affirmed by the First Appellate Court vide its judgment and order dated 09.11.1998 passed by the 10th Additional District & Sessions Judge, Agra.

4. The appellant before this Court in the present Second Appeal raises a number of substantial questions of law which according to learned counsel for the appellant do arise for consideration before this Court under Sectoin 100 of Civil Procedure Code.

5. Upon a pointed query being raised as to which of the 3 substantial questions of law would really be arising for consideration of the Court in a suit for mandatory injunction filed by the defendants having raised certain constructions over and above a plot belonging to the appellant, Sri Arun Kumar, learned Advocate argued that misreading of the Amin Commission's Report has resulted in rejecting the application of the petitioner for Survey Commission. He submits that the plot that belonged to the appellant was numbered as 134, whereas, the plot that belonged to the defendant was 133 and both plots being adjacent to each other, certain constructions raised by the defendants-respondents in their own plots overlapped the boundary of plot of the appellant, which caused filing of the suit.

6. It is submitted by Sri Arun Kumar, learned Advocate that Amin Commission Report if had been properly appreciated in its correct perspective, it would have led to conclude that there was some trespass and, therefore, in order to identify the portion that fell in the trespassed area really belonged to the appellant to decree the suit, it needed a proper survey of the location.

7. In order to appreciate this argument, upon a pointed query being raised to Sri Arun Kumar, learned Advocate as to what was the evidence led before the court of first instance to demonstrate that the area of the appellant was ad- measuring so much so that it matched with the revenue village map or otherwise with a map that would show Gaon Sabha Abadi, Sri Arun Kumar, learned Advocate submits that no such evidence was led. However, he argued that in matters of identification of land in civil suit, the Survey Commission would be the only option.

8. In my considered view, the Survey Commission can of course, be ordered to but only on the basis of such evidence which can be cogent enough to prove the pleadings on their face value. In a suit for mandatory injunction or otherwise in a suit for permanent prohibitory injunction, it is the duty of the plaintiff to not only plead certain facts which may be relevant to issue but also to lead such material evidence to prove that such pleadings were being genuinely raised. The plaintiff is not supposed to leave plaint allegations for its determination by the court without there being any evidence on record.

9. In this view of the matter, therefore, raising of question as to misrepresentation of Amin Commission Report would not be sufficient enough to hold that the judgment is bad or otherwise the findings returned to that effect are perverse. On the point of identification of the land, I find that the court below very categorically concluded that no sufficient evidence was led by the appellant to demonstrate that disputed constructions fell on plot no.134.

10. In such circumstances, therefore, in the absence of any evidence if the Amin Commission Report demonstrated that the constructions had been on plot no.133, it cannot be prima facie doubted in the absence of any evidence to the contrary.

11. In order to appreciate the findings returned by the court of appeal, I have also perused the Amin Commission Report.

12. In the Amin Commission Report, it has been first stated by the Amin Commissioner that there was no fix point which was admitted to the parties so as to undertake proper survey to submit any report. However, he proceeded to submit a report on the basis of a report dated 23.02.1997 bearing paper no.57C in which spot map was prepared.

13. Survey Commissioner though had further reported that appellant had disputed the constructions of shop in plot no.133 but the parties had agreed that except this factum of disputed construction the measurement of the area and the disputed shop was absolutely correct. Thus, on the basis of the report earlier submitted, the Amin Commissioner again submitted a report that the disputed shop was in plot no.133 and it was on that basis that earlier report came to be rejected by the Additional District & Sessions Judge under its order dated 29.10.1997. Having thus discussed the report, the only material which according to the appellant guided the court in returning findings that petitioner had not been able to prove his case. In my considered view of the findings so returned regarding shop in question falling on plot no.133 in the absence of any other material placed by the appellant, can not be said to be perverse. Reports that have already been examined clearly stated that there was no fix point admitted to parties for measurement. It is in these circumstances, it was necessary in the first instance for the plaintiff-appellant to have filed some sort of map or otherwise the exact measurement carried by any revenue authority in support of the pleadings and in the absence of such evidence being brought on record, it cannot be said that findings returned by the court contrary to what has been pleaded to the plaint allegation, to be perverse.

14. I may observe here, misreading of a document would arise where upon its bare reading, it is found to mean absolutely otherwise to what has been concluded. I have referred to and observe Amin Commission Report and find that it has been rightly appreciated and the court had no other option but to rely upon the same as there was no other document or evidence to the contrary. Thus, it is not a case of misreading of Amin Commission Report at all.

15. No other substantial question of law is argued.

16. In such view of the matter, therefore, in my considered view, the findings returned by the court to the effect that plaintiff could not prove his case as to the encroachment made by the defendants upon his land, to be in any manner suffering from any manifest error of law or fact.

17. The substantial question of law, therefore, as pleaded by the appellant does not arise.

18. Appeal lacks merits and is, accordingly, dismissed. Order Date :- 24.1.2025/S.A. SALMAN AHMAD High Court of Judicature at Allahabad

dismissing the suit which came to be affirmed by the First Appellate Court vide its judgment and order dated 09.11.1998 passed by the 10th Additional District & Sessions Judge, Agra.

4. The appellant before this Court in the present Second Appeal raises a number of substantial questions of law which according to learned counsel for the appellant do arise for consideration before this Court under Sectoin 100 of Civil Procedure Code.

5. Upon a pointed query being raised as to which of the 3 substantial questions of law would really be arising for consideration of the Court in a suit for mandatory injunction filed by the defendants having raised certain constructions over and above a plot belonging to the appellant, Sri Arun Kumar, learned Advocate argued that misreading of the Amin Commission's Report has resulted in rejecting the application of the petitioner for Survey Commission. He submits that the plot that belonged to the appellant was numbered as 134, whereas, the plot that belonged to the defendant was 133 and both plots being adjacent to each other, certain constructions raised by the defendants-respondents in their own plots overlapped the boundary of plot of the appellant, which caused filing of the suit.

6. It is submitted by Sri Arun Kumar, learned Advocate that Amin Commission Report if had been properly appreciated in its correct perspective, it would have led to conclude that there was some trespass and, therefore, in order to identify the portion that fell in the trespassed area really belonged to the appellant to decree the suit, it needed a proper survey of the location.

7. In order to appreciate this argument, upon a pointed query being raised to Sri Arun Kumar, learned Advocate as to what was the evidence led before the court of first instance to demonstrate that the area of the appellant was ad- measuring so much so that it matched with the revenue village map or otherwise with a map that would show Gaon Sabha Abadi, Sri Arun Kumar, learned Advocate submits that no such evidence was led. However, he argued that in matters of identification of land in civil suit, the Survey Commission would be the only option.

8. In my considered view, the Survey Commission can of course, be ordered to but only on the basis of such evidence which can be cogent enough to prove the pleadings on their face value. In a suit for mandatory injunction or otherwise in a suit for permanent prohibitory injunction, it is the duty of the plaintiff to not only plead certain facts which may be relevant to issue but also to lead such material evidence to prove that such pleadings were being genuinely raised. The plaintiff is not supposed to leave plaint allegations for its determination by the court without there being any evidence on record.

9. In this view of the matter, therefore, raising of question as to misrepresentation of Amin Commission Report would not be sufficient enough to hold that the judgment is bad or otherwise the findings returned to that effect are perverse. On the point of identification of the land, I find that the court below very categorically concluded that no sufficient evidence was led by the appellant to demonstrate that disputed constructions fell on plot no.134.

10. In such circumstances, therefore, in the absence of any evidence if the Amin Commission Report demonstrated that the constructions had been on plot no.133, it cannot be prima facie doubted in the absence of any evidence to the contrary.

11. In order to appreciate the findings returned by the court of appeal, I have also perused the Amin Commission Report.

12. In the Amin Commission Report, it has been first stated by the Amin Commissioner that there was no fix point which was admitted to the parties so as to undertake proper survey to submit any report. However, he proceeded to submit a report on the basis of a report dated 23.02.1997 bearing paper no.57C in which spot map was prepared.

13. Survey Commissioner though had further reported that appellant had disputed the constructions of shop in plot no.133 but the parties had agreed that except this factum of disputed construction the measurement of the area and the disputed shop was absolutely correct. Thus, on the basis of the report earlier submitted, the Amin Commissioner again submitted a report that the disputed shop was in plot no.133 and it was on that basis that earlier report came to be rejected by the Additional District & Sessions Judge under its order dated 29.10.1997. Having thus discussed the report, the only material which according to the appellant guided the court in returning findings that petitioner had not been able to prove his case. In my considered view of the findings so returned regarding shop in question falling on plot no.133 in the absence of any other material placed by the appellant, can not be said to be perverse. Reports that have already been examined clearly stated that there was no fix point admitted to parties for measurement. It is in these circumstances, it was necessary in the first instance for the plaintiff-appellant to have filed some sort of map or otherwise the exact measurement carried by any revenue authority in support of the pleadings and in the absence of such evidence being brought on record, it cannot be said that findings returned by the court contrary to what has been pleaded to the plaint allegation, to be perverse.

14. I may observe here, misreading of a document would arise where upon its bare reading, it is found to mean absolutely otherwise to what has been concluded. I have referred to and observe Amin Commission Report and find that it has been rightly appreciated and the court had no other option but to rely upon the same as there was no other document or evidence to the contrary. Thus, it is not a case of misreading of Amin Commission Report at all.

15. No other substantial question of law is argued.

16. In such view of the matter, therefore, in my considered view, the findings returned by the court to the effect that plaintiff could not prove his case as to the encroachment made by the defendants upon his land, to be in any manner suffering from any manifest error of law or fact.

17. The substantial question of law, therefore, as pleaded by the appellant does not arise.

18. Appeal lacks merits and is, accordingly, dismissed. Order Date :- 24.1.2025/S.A. SALMAN AHMAD High Court of Judicature at Allahabad