# U.P. Avas Evam Vikas Parishad, Lucknow & Anr v. Sirajuddin & Ors

- **Citation:** (2024) 9 ILRA 625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-09
- **Case number:** Second Appeal No. 946 of 2010
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-avas-evam-vikas-parishad-lucknow-anr-v-sirajuddin-ors-52411
- **Pages:** 14

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Section 100 - Order VII - Rule 11 - U.P.
Avas Evam Vikas Parishad Adhiniyam,
1965 - Sections 17, 32 & 88(2) - U.P.
Town Improvement Act, 1919 - Section -
36 - Specific Relief Act, 1963 - Sections 38
& 41 - Second Appeal - filed by defendants -
original suit - for a permanent prohibitory
injunction - filed by five plaintiffs, against the
defendant-appellants, who claim ownership and
tenancy of a disputed property - The trial court
dismissed the suit - but, the appeal filed by
plaintiffs was allowed, leading to a decree in
their favour - The defendants then appealed in
instant Second Appeal - raised substantial
questions of law regarding the ownership and
identity of the disputed land - court finds that,
in the entire gamut of the otherwise very
detailed
findings
recorded
by
the
lower
appellant court to answer for the plaintiffs, the
ignorance of this principle in dispute about
location of the suit property being in one plot
number or numbers or the other, would vitiate
the conclusions - held, the findings of the lower
appellate court cannot be U.P.held unless a
survey of the contiguous Khasra numbers is duly
carried out according to the fixed point method
- hence, the impugned decree passed by lower
appellate court is set aside - matter is remanded
back to the court for further investigation to
accurately determine the location of the suit
property using a survey commission or the total
station method - lower appellate court will then
rehear and decide the appeal afresh - directions
issued, accordingly - Appeal is allowed in
part.(Para - 38, 40, 41, 42)

Second Appeal Partly allowed. (E-11)

List of Cases cited:
626 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,919 of 48,818. This is a partial read: ask again with offset=39919 for what follows._

9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Anr. Vs. Sirajuddin & Ors.
625
5751/2, 5751/3, 5751/4, 5751/6, 5751/7,
5751/8,
5751/9,
5751/10,
5751/11,
5751/12, would have to be determined
through
the
agency
of
a
survey
commission, who would undertake it
following the three fixed points method. If
the survey commission fails for the nonavailability of three fixed points, a fresh
commission shall be issued to a trained
agency to determine the location of the suit
property as aforesaid, following the total
station method. Upon the submission of a
report
by
the
Survey
Commissioner
following the fixed point method, or the
total station method, as the case may be,
the parties would have a right to object and
lead necessary evidence. The Lower
Appellate Court will then re-hear and
decide the appeal afresh, all to be done
within a period of six months from the date
of receipt of a copy of this judgment and
order.

47. In the result, this appeal succeeds
and is allowed in part. The impugned
decree passed by the Lower Appellate
Court is set aside with an order of remand
in above terms.

48. The costs of this appeal shall abide
by the event in the appeal before the Lower
Appellate Court.

49. Let the lower court's records be
sent down at once.
----------
(2024) 9 ILRA 625
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 946 of 2010
U.P. Avas Evam Vikas Parishad, Lucknow
& Anr. ...Appellants
Versus
Sirajuddin & Ors. ...Respondents

Counsel for the Appellants:
A.P. Srivastava, Chandra Shekhar Singh

Counsel for the Respondents:
A.K. Sharma, Anil Sharma, D.S. Bohra

Civil Law - Civil Procedure Code, 1908 -
Section 100 - Order VII - Rule 11 - U.P.
Avas Evam Vikas Parishad Adhiniyam,
1965 - Sections 17, 32 & 88(2) - U.P.
Town Improvement Act, 1919 - Section -
36 - Specific Relief Act, 1963 - Sections 38
& 41 - Second Appeal - filed by defendants -
original suit - for a permanent prohibitory
injunction - filed by five plaintiffs, against the
defendant-appellants, who claim ownership and
tenancy of a disputed property - The trial court
dismissed the suit - but, the appeal filed by
plaintiffs was allowed, leading to a decree in
their favour - The defendants then appealed in
instant Second Appeal - raised substantial
questions of law regarding the ownership and
identity of the disputed land - court finds that,
in the entire gamut of the otherwise very
detailed
findings
recorded
by
the
lower
appellant court to answer for the plaintiffs, the
ignorance of this principle in dispute about
location of the suit property being in one plot
number or numbers or the other, would vitiate
the conclusions - held, the findings of the lower
appellate court cannot be U.P.held unless a
survey of the contiguous Khasra numbers is duly
carried out according to the fixed point method
- hence, the impugned decree passed by lower
appellate court is set aside - matter is remanded
back to the court for further investigation to
accurately determine the location of the suit
property using a survey commission or the total
station method - lower appellate court will then
rehear and decide the appeal afresh - directions
issued, accordingly - Appeal is allowed in
part.(Para - 38, 40, 41, 42)

Second Appeal Partly allowed. (E-11)

List of Cases cited:
626 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Shreepat Vs Rajendra Prasad & ors., 2000 (40)
ALR 534: JT 2000 (7) SC 379,

2. Delhi Development Authority Vs Mohd. Sher Nabi
Chaman & ors., 2015 SCC OnLine Del 7832.

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendants' second appeal
arising out of a suit for permanent
prohibitory injunction.

2. Original Suit No.866 of 2005 was
instituted in the Court of the City Munsif,
Meerut by the five plaintiff-respondents to
this appeal, praying that a decree of
permanent injunction be passed against the
defendants, to wit, the U.P. Avas Evam
Vikas Parishad, Lucknow and the Assistant
Housing Commissioner of the Parishad
aforesaid to the effect that the defendants
be restrained from interfering in the rights
and
possession
of
the
plaintiffs,
demolishing their standing constructions or
interfering with the construction work
carried on by the plaintiffs on the land in
dispute, the full particulars whereof are
given at the foot of the plaint. The property,
subject matter of the said suit, was shown
to be 5000 square yards of land of Khasra
No.5751, part of Khewat Nos.1 and 15,
situate at Victoria Park, Dhobi Ghat,
Meerut City (for short, 'the suit property'),
with
boundaries
detailed.
Plaintiffrespondent No.1, Sirajuddin son of Sheikh
Fariduddin, claimed himself to be the
owner and landlord of the suit property.
Plaintiff-respondent Nos.2 to 5, to wit,
Maharaj Singh, Ashok Kumar, Shripal
Singh and Ashok Kumar Sharma, claimed
possession over the suit property as tenants
of plaintiff No.1, Sirajuddin. Plaintiffrespondent Nos.2 to 5 pleaded that they
were carrying the business of a dairy in the
suit property and there was no dispute
between Sirajuddin, the owner and landlord
on one hand and plaintiff-respondent Nos.2
to 5, tenants on the other. The plaintiffrespondents shall together be referred to as
'the plaintiffs' hereinafter. In the event of
reference to some of them, the reference
would be by their number in the array or
other individual reference.

3. Plaintiff Nos.2 to 5 say that they are
in possession since the year 1972 and have
earned goodwill for their business. Plaintiff
No.1, therefore, agreed to transfer the suit
property in favour of plaintiff Nos.2 to 5,
executing a registered agreement to sell
dated 11.04.1990 in their favour for a total
sale
consideration
of
Rs.5,00,000/-.
Plaintiff Nos.2 to 5 paid the first plaintiff in
earnest a sum of Rs.4,70,000/-. It is averred
that plaintiff Nos.2 to 5, being in
possession of the suit property prior to
execution of the agreement to sell, plaintiff
No.1, in part performance of the contract,
delivered possession to plaintiff Nos.2 to 5.
The defendants have no interest whatsoever
in the suit property. On the other hand,
plaintiff Nos.2 to 5 are tethering their cows
and buffaloes and carrying on business.
The defendants have never acquired or
purchased the suit property. It was also
pleaded by the plaintiffs that the total area
of Khasra No.5751 was 29 bigha 13 biswa
(pucca), of which in Khewat Nos.1 and 15
Mahal 3+7 - 1/2 and 13+2 - 1/2, 13 bigha 8
biswa was part of the Khewat of the
zamindars. Two biswa land of Khasra
No.5751 was part of other Khewat,
belonging to other zamindars and 16 bigha
5 biswa was mafi davam mahal.

4. A sale deed was executed on
04.07.1949 by Wahiuddin in favour of Smt.
Bhuria, conveying 2 bigha land out of
Khasra No.5751, located towards the
northern side of the said plot. The land,
which was purchased by Smt. Bhuria on
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Anr. Vs. Sirajuddin & Ors.
627
northern side of the Khasra was located
near the road. After Bhuria's demise, her
son Allah Mehar inherited the said land.
This land came to be known as Dhobi Ghat
and is part of the land acquired out of
Khasra No.5751, the total acquisition out
of the said plot, being an area of 12 bigha 5
biswa.

5. It is also the plaintiffs' case that
though
acquired,
possession
of
land
purchased by Smt. Bhuria, known as Dhobi
Ghat, was not taken by the defendants.
Instead, they are asserting claim to 2 bigha
land towards south of the part of Khasra
No.5751, belonging to Smt. Bhuria and
after her, her son, Allah Mehar. The suit
property is situate to the south of the part of
Khasra No.5751, that has not been
acquired. The further case of the plaintiffs
is that they were not issued any notice by
the defendants to take possession. The
plaintiffs say that they have not encroached
any land of the defendants. The defendants
do not own the suit property, but their
employees threatened to take forcible
possession and forcibly demolished the
plaintiffs' construction. It is also pleaded
that in the month of February, 1990, the
defendants
held
out
threats
again,
compelling the plaintiffs to serve a notice
under Section 88(2) of the Uttar Pradesh
Avas Evam Vikas Parishad Adhiniyam,
1965 (for short, 'the Act of 1965') upon the
defendants on 23.02.1990. The defendants
received the notice, but did not answer.

6. The defendants filed a written
statement, contesting the plaintiffs' case.
They say that plaintiff No.1 is neither
owner in possession of the suit property nor
plaintiff Nos.2 to 5 tenants in possession.
The plaintiffs, thus, have neither title nor
possession. The suit property is there on
papers, but not on the spot. The description
is vague and elusive. The suit property is
not identifiable. The boundaries given in
the plaint are fictitious. The suit property
does not exist in the vicinity of the acquired
land of Khasra No.5751. The defendants
say that some land of Khasra No.5751 was
acquired by the State Government under
Section 36 of the U.P. Town Improvement
Act, 1919 and by subsequent notifications
under Section 32 of the Act of 1965. A
notification was in the last issued under
Section 17 of the Act of 1965 in October,
1972. Possession and ownership of the land
acquired out of Khasra No.5751 was taken
by the defendants on 13.11.1972. Since
then, they are in possession of the suit
property as its absolute owner. The total
area acquired out of Khasra No.5751 is 14
bigha 16 bishwa and 6 biswansi. The
boundaries of the acquired part of Khasra
No.5751 have been pleaded by the
defendants to rebut the plaintiffs' case. The
defendants say that part of the land,
belonging to Allah Mehar, was acquired,
but possession of the acquired land in its
entirety was not delivered to the defendants
at the time of acquisition, including the part
belonging to Allah Mehar as it houses
abadi. The acquired part of Khasra
No.5751 has encroachers, against whom
cases are pending in various Courts. In
paragraph No.19 of the written statement, it
is admitted that a total area of 11 bigha 19
bishwa 12 biswansi alone out of Khasra
No.5751 was taken possession of by the
defendants. It is pleaded in paragraph
No.20 of the written statement, amongst
others, that construction work is going on
over an area 11-19-12 of land aforesaid for
Scheme No.1, Mangal Pandey Nagar, but
according to the layout plan, no area out of
land comprised in Khewat Nos.1 and 15 is
included. It is said, therefore, that the
plaintiffs would have no cause of action,
because the suit property is part of Khasra
628 INDIAN LAW REPORTS ALLAHABAD SERIES
No.5751, located in Khewat Nos.1 and 15.
There were other pleas raised regarding bar
of the suit under the law.

7. The Trial Court, on the pleadings of
parties,
framed
the
following
issues
(translated into English from Hindi):

"1. Whether plaintiff No.1 is the
sole owner of the property in dispute,
comprising Khewat Nos.1 and 15, Khasra
No.5751, the details of which are given at
the foot of the plaint?

2. Whether plaintiff Nos.2 to 5 are
in possession of the property in dispute with
the consent of plaintiff No.1 since the year
1972 and their possession is protected by
Section 53A of the Transfer of Property Act?

3. Whether the suit is barred by
res judicata, as pleaded in paragraph No.24
of the written statement?

4. Whether the land in dispute is
part of the acquired land, as pleaded in the
written statement?

5. Whether the suit is barred by
Section 88(2) of the U.P. Avas Evam Vikas
Parishad Adhiniyam, 1965?

6. Whether the plaint is fit to be
rejected under Order VII Rule 11 CPC, as
pleaded in paragraph No.29 of the written
statement?

7. Whether the suit is barred by
Section 38/41 of the Specific Relief Act?

8. Whether the suit is bad for
non-joinder of necessary parties?

9. Whether the defendants are
entitled to the award of special cost?

10. Relief?

11. Whether the description of the
property in dispute is incomplete, misleading
and ambiguous, and the land is not
identifiable on the spot? If yes, its effect?"

8. The plaintiffs filed substantial
documentary evidence and examined two
witnesses, PW-1 Maharaj Singh and PW-2
Daya
Shankar
Pandey,
whereas
the
defendants also led documentary evidence
and examined a solitary witness, DW-1
Umesh Mohan Sharma. The details of the
evidence, that was there before the Trial
Court, is listed in the learned Trial Judge's
judgment.

9. Issues Nos.1 and 2 were answered
against the plaintiffs and in favour of the
defendants. Issue No.3 was answered for
the plaintiffs. Issue No.4 was also answered
for the plaintiffs. Issue No.5, likewise, was
answered for the plaintiffs. Issue No.11
was decided against the plaintiffs and in
favour of the defendants. Issue No.6 for the
defendants, holding that since Issues Nos.1
and 2 had been decided against the
plaintiffs, the plaint was fit to be rejected.
Issue Nos.7 and 8 were not pressed by the
defendants. Issue No.9 was answered for
the plaintiffs as the defendants did not press
much for special costs. Issue No.10 was
answered against the plaintiffs, holding that
no injunction can be issued against the true
owner and that the suit was not filed by the
true owner. The Trial Court, accordingly,
dismissed the suit with costs vide judgment
and decree dated 01.10.2009.

10. The plaintiffs, aggrieved by the
Trial Court's decree, appealed to the
learned
District
Judge,
Meerut.
The
plaintiffs' appeal was numbered as Appeal
No.130 of 2009 and assigned to the Special
Judge (E.C. Act)/ Additional District
Judge, Meerut. The learned Additional
District Judge, before whom the appeal
came up for determination, vide judgment
and decree dated 02.06.2010 allowed the
same, reversed the Trial Court and decreed
the
suit
perpetually
restraining
the
defendants from interfering with the
plaintiffs' possession in the suit property.
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Anr. Vs. Sirajuddin & Ors.
629

11. Aggrieved, this appeal has been
preferred by the defendants under Section
100 of the Code of Civil Procedure, 1908
(for short, 'the Code').

12. The appeal was admitted on the
following substantial question of law:

Whether the finding of the courts
below that the land in dispute has not been
acquired by the U.P. Avas Evam Vikas
Parishad in exercise of power under
Section 28 read with section 32 of the U.P.
Avas Evam Vikas Adhiniyam is perverse?

The aforesaid question was not
numbered.

13. Later on, on 07.08.2019, two other
substantial
questions
of
law
were
formulated and numbered. These read:

(1) Whether, in absence of any
categorical
finding
with
regard
to
ownership of the plaintiffs over the suit
property and with regard to identity of the
land in dispute, the lower appellate court
was justified in decreeing the suit?

(2) Whether, the lower appellate
court was justified in placing the onus on
the defendants-appellant of proving their
right over the property in dispute?

14. After the hearing had proceeded
substantially on 28.02.2024, 29.02.2024,
01.03.2024,
04.03.2024,
05.03.2024,
07.03.2024 and 11.03.2024, on 12th of
March, 2024, this Court thought it
imperative to frame a further substantial
question of law, to which the parties
agreed. Accordingly, following substantial
question of law, marked as '(iii)' was
formulated. It reads:

Whether the issue being if part of
Khasra No. 5751 i.e. the suit property is
located in Khewat Nos. 1 and 15 or Khewat
No. 445, it was imperative for the Court to
issue a Survey Commission or adopt the
Total Station Method in order to locate the
suit property?

15.
This
appeal
was
heard
on
28.02.2024, and, thereafter, across a
number of dates until 14.03.2024, when
judgment was reserved.

16. The learned Counsel for the parties
mostly addressed the Court on Substantial
Question of Law Nos.1, 2 and (iii). Upon
considering the submissions of parties on
Substantial Question of Law No. (iii), the
way these were addressed, this Court
thought that the question was formulated
on slightly different terms than those
involved, which required clarification and
perhaps re-formulation, on which the
parties had to be heard again. Accordingly,
the appeal was posted for further hearing
on 06.09.2024. On the said day, learned
Counsel for the parties were apprised about
the terms of Substantial Question of Law
No. (iii) formulated on 12.03.2024 and
seeking
clarification
about
their
submissions advanced earlier. The learned
Counsel appearing for both parties agreed
that given their submissions on the
substantial question under reference, it was
required to be re-formulated. Accordingly,
Substantial Question of Law No.(iii),
framed on 12.03.2024, was reformulated on
06.09.2024 in the following terms:

(iii) Whether the issue being if the
suit property is located in Khasra Nos.
5751/1, 5751/2, 5751/3, 5751/4, 5751/6,
5751/7, 5751/8, 5751/9, 5751/10, 5751/11
and 5751/12 or a part of these plots
(unacquired)
or
Khasra
No.5751/5
(acquired), all part of Khewat Nos. 1 and
15, it was imperative for the Court to issue
630 INDIAN LAW REPORTS ALLAHABAD SERIES
a Survey Commission or adopt the Total
Station Method?

17. Heard Mr. Ramesh Upadhyaya,
learned Senior Advocate assisted by Mr.
Rajan Upadhyay, learned Counsel for the
defendants in support of this appeal, Mr.
R.C. Singh, learned Senior Advocate
assisted by Mr. Dheeraj Singh Bohra,
learned
Counsel
appearing
for
the
plaintiffs.

18. It was urged on behalf of the
defendants on the substantial question of
law formulated on 10.07.2019 that the
finding by the Lower Appellate Court in
reversal of the Trial Court to the effect that
the suit property had not been acquired by
the defendants is perverse. On the other
hand, it is urged for the plaintiffs that the
finding about non-acquisition of the suit
property recorded by the Lower Appellate
Court is based on a thorough appreciation
of the documentary and oral evidence on
record. It is a very plausible finding and
one of fact, which ought not be disturbed.
This question would be dealt with later in
this judgment.

19. Substantial Question of Law No.1
may first be answered. This question has
two parts to it. The first is if in the absence
of any categorical finding with regard to
the plaintiffs' ownership of the suit
property, the suit could be decreed and the
other is if it could be decreed, without a
categorical finding with regard to identity
of the land in dispute. A perusal of the
findings recorded by the Lower Appellate
Court shows that it is not all the plaintiffs,
who claim ownership of the suit property.
Ownership is claimed by plaintiff No.1,
Sirajuddin alone, whereas plaintiff Nos.2 to
5 claimed to be his tenants and doing
business in the suit property i.e. part of
Khasra No.5751 on the southern side of
this large minjumla number, part of Khewat
Nos.1 and 15. Khasra No.5751M has been
noticed to be a very large plot, spread
across different Khewat, including Khewat
Nos.1 and 15. On the question of
ownership, the Lower Appellate Court has
recorded a finding in favour of plaintiff
No.1 by relying upon the award, where it is
mentioned that Sheikh Shafiuddin has
claimed to be the tenure-holder of land of
Khewat No.15, Mahal 13+2 - 1/2 to the
extent of 5-4-0 and Khewat No.1, Mahal
3+7 - 1/2, admeasuring 3-14-0, which is in
his possession.

20. It is also noticed by the Lower
Appellate Court from the award that
Shafiuddin's father was Sheikh Rafiuddin,
who died in the year 1968. The award also
mentions the fact that 2-0-0 of land had
been sold to Allah Mehar. In fact, it had
been sold to Allah Mehar's mother, Smt.
Bhuria by an ancestor of Shafiuddin, one
Wahiuddin. The further finding recorded
based on the award by the learned
Additional District Judge is that the land of
Khasra No.5751, in the southern part of it,
does not belong to Allah Mehar, as would
be evident from a perusal of the sale deed
executed in favour of Smt. Bhuria (Allah
Mehar's mother). The remainder of land in
Khasra
Nos.5751/1,
5751/2,
5751/3,
5751/4, 5751/6, 5751/7, 5751/8, 5751/9,
5751/10, 5751/11, 5751/12 has not been
acquired.

21. It has also been held by the learned
District Judge, on the basis of the findings
in the Special Land Acquisition Officer's
award, that land of Khewat No.445, part of
Khata Nos.398 and 411, but comprising
Khasra No.5751, admeasuring 12-16-6 is
nazul and land of Khasra No.5751/5, 2-0-0
has been acquired for the Scheme. The
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Anr. Vs. Sirajuddin & Ors.
631
further finding is that apart from 2-0-0 of
land, comprised in this Khasra, part of
Khewat Nos.1 and 15, no other part has
been
acquired.
The
learned
Lower
Appellate Court has, therefore, recorded a
finding that leaving aside nazul land in
Khasra No.5751 and the area of 2-0-0, the
rest of the land would be owned according
to the record of ownership in the Khewat.

22. This Court must remark that in
determining the question of ownership on
the state of pleadings of parties, the
question is always to be determined inter
partes, relative to their pleaded case and the
evidence produced. The case of plaintiff
No.1 is one based on inheritance, pitted
against that of the defendants, who claim
on the basis of acquisition. No doubt, the
Lower Appellate Court has not investigated
the entire derivation of title by plaintiff
No.1 from the last recorded and admitted
owner or zamindar Sheikh Wahiuddin
down
to
plaintiff
No.1,
precisely
determining his share according to the
pedigree, but that would not be the
requirement of the law in a suit for
injunction of the present kind. The findings
in the award, on which the Lower
Appellate Court has relied, clearly point to
the fact that the Special Land Acquisition
Officer has held that in Khasra No.5751,
part of Khewat Nos.1 and 15, all that has
been acquired is an area of 2-0-0, the land
transferred by Sheikh Wahiuddin to Mst.
Bhuria, and, subsequently, inherited by
Allah Mehar, her son. The Lower Appellate
Court has, therefore, held that the other
land in Khasra No.5751 would belong to
the owners as recorded in the Khewat.
Amongst them, it is not disputed that
plaintiff No.1 is there. In this suit for
injunction against a defendant, who does
not himself claim title to a particular plot of
land beyond a certain area of it, which the
plaintiff does not claim, the Lower
Appellate Court has recorded a finding as
to ownership of plaintiff No.1, sufficient to
support the decree for injunction. It has
also been opined by the Lower Appellate
Court, on the basis of consideration of
relevant evidence, that plaintiff Nos.2 to 5
are in possession of the suit property with
permission of plaintiff No.1, and further,
that their possession is protected by Section
53-A of the Transfer of Property Act.

23. As to the other part of the question
regarding decreeing the suit without the
Court recording a categorical finding as to
identity of the suit property, this Court
notices that the Lower Appellate Court has
determined the identity of the suit property
by looking into the award, where the case
of parties is categorical that except for an
area admeasuring 2-0-0 of land, comprising
Khasra No.5751/5, transferred to Mst.
Bhuria through a sale deed by Wahiuddin
(later on inherited by Allah Mehar), no
other part of Khasra No.5751, lying in
Khewat Nos.1 and 15, was acquired by the
defendants. Now, to determine the identity
of the suit property, the Lower Appellate
Court has looked into two maps, produced
in evidence by the defendants, one bearing
paper No.20-Ga and the other bearing
paper No.21-Ga. The Court has found
material discrepancies between these two
maps and analyzed it well. The Lower
Appellate Court has remarked that the two
maps are contrary to the acquisition
proceedings. A lay out plan, bearing paper
No.93-Ga has also been considered by the
Lower Appellate Court, which shows the
total area of acquired land in Khasra
No.5751M to be 3.9550 hectares that works
out to 16-0-0. Out of this, an area of 1740
square meters, which is shown as abadi,
reducing the acquired area to 15-0-0, has
been noticed. The lay out plan of the
632 INDIAN LAW REPORTS ALLAHABAD SERIES
acquired land has been meticulously
analyzed with reference to the other maps
produced by the defendants to reach a
conclusion that the land of the Dhobi Ghat,
which is admittedly acquired, is not shown
in the lay out plan and the area thereof,
admeasuring 2-0-0, is admitted to be made
good from land in Khasra No.5751 to the
south, which is unacquired land. It is also
observed that admittedly, according to the
defendants, they are in possession of an
area 12-0-0 of land, apparently out of
Khasra No.5751, but in the lay out plan,
they have surprisingly shown an area of 150-0 in the said Khasra number. There is
then a stinging comment by the Lower
Appellate Court that the defendants with a
dishonest intention have drawn up the lay
out in order to claim unacquired land from
the southern part of the Khasra, which they
have lost to the extent of 2-0-0, despite
acquisition, comprising the Dhobi Ghat, of
which they could not take possession.

24. In the face of these findings, apart
from the question whether the suit property
is accurately identified or something more
was required to be done to identify it with
greater precision, it cannot be said that the
Lower Appellate Court has decreed the suit
without recording a finding regarding the
identity of the suit property.

25. Substantial Question of Law No.1
is, therefore, answered in the terms that it
cannot be said that there is absence of
findings with regarding to ownership of the
plaintiffs over the suit property or as to
identity of the same, though the identity is
required to be established with greater
precision.

26. We may now turn to answer the
substantial question of law last formulated,
that is to say, Question No. (iii) as reformulated. In support of the appeal, it is
urged on behalf of the defendants that
looking to the findings recorded by the
Lower Appellate Court, all that can be said
is that Khasra No.5751 is a very large plot,
spread across different Khewat. The land of
Khasra No.5751, that is part of Khewat
Nos.1 and 15, has not been acquired except
some area, but parts of the said Khasra
number, that lie in other Khewat numbers,
have been substantially acquired. The
defendants would submit that the suit
property's location has not been identified
with reference to the Khasra number, where
it is situate. This militates against the
principle that if there is a doubt with
reference to the plot number, where the suit
property is situate, it is imperative for the
Court to issue a survey commission and
determine the precise location.

27. The plaintiffs rely on the very
elaborate findings of the Lower Appellate
Court to hold that the suit property is not at
all a part of the acquired land, particularly
those findings that tend to show the first
plaintiff's land, part of Khasra No.5751,
lying in Khewat Nos.1 and 15 was never
acquired. This Court finds that the Lower
Appellate Court has remarked that after the
issue of notification under Section 6 of the
Land Acquisition Act, which here would
mean the notification issued under Section
32 of the Act of 1965 read with Section 6
of the Land Acquisition Act and before
possession is taken, the Collector under
Section 8 of the last mentioned Act has to
demarcate the land acquired and get the
same measured. If a map of the acquired
land has not already been drawn up, the
Collector has to get that map done. The
Lower Appellate Court has said and very
pertinently that despite the map or plan, as
it is called under Section 8 of the Land
Acquisition Act, being demanded by the
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Anr. Vs. Sirajuddin & Ors.
633
Court, it was not produced. Obviously, the
Court must have asked the defendants to
produce the map, because they are the
acquiring body, who are in touch with the
Collector and the Land Acquisition Officer.
The absence of the map or a plan of the
land acquired, at the stage of Section 8
proceedings, has left matters about the
precise identity of the acquired land and a
fortiori the location of the suit property,
within or without the said land in the realm
of doubt.

28. The Lower Appellate Court has
recorded facts, relying extensively on the
award made by the Land Acquisition
Officer, to the effect that the proposal to
acquire the land for the defendants
involved a total of 71-14-6, of which 5516-0 was ZA land and the balance 14-16-6
was non-ZA area. The award has been
extensively scrutinized by the Lower
Appellate Court to remark that so far as
Khasra No.5751 is concerned, there was a
demand for compensation, as regards 2-0-0
area of land acquired, put forward by Allah
Mehar. It is noticed that out of the acquired
land in Khasra No.5751, 0-11-6 has been
noticed to be banjar belonging to Class
14(3). An area of 12-5-0 in Khasra
No.5751, was claimed by Bhabhuti and
Bulakidas on the basis of their possession,
with the entries of a well and a pucca
construction. The award found it to be
nazul, entrusted to the Management of the
City
Board,
Meerut.
Bhabhuti
and
Bulakidas were recorded in Class 10 as
non-occupancy tenants. The land was utter
nazul. There is then a finding with
reference to the various subdivisions of
Khasra No.5751, commencing 5751/1,
5751/2, 5751/3, 5751/4, 5751/6, 5751/7,
5751/8,
5751/9,
5751/10,
5751/11,
5751/12, belonging to different landholders
and the fact that these landholders came up
with objections claiming compensation, but
the Land Acquisition Officer held that all
these plots of land were not acquired.

29. There is a specific finding by the
Lower Appellate Court, on the basis of the
findings of the Land Acquisition Officer,
that the Avas Vikas Parishad had acquired
land of Khasra No.5751, that was part of
Khewat No.445, Khata Nos.398 and 411,
admeasuring
12-16-6
and
Khasra
No.5751/5, admeasuring 2-0-0. It is also
remarked that the land, admeasuring 2-0-0
belongs to Allah Mehar. The further
finding is that a perusal of the award shows
that the fact is admitted that in Khewat
Nos.1 and 15, the only land acquired is an
area of 2-0-0 and no other land from this
Khewat has been acquired.

30. Now, before this Court also, it is
not seriously in issue at the instance of the
defendants that any other part of Khasra
No.5751, Khewat Nos.1 and 15 was
acquired for the defendants. In their
submission, the defendants had said that
they had not acquired any land in Khewat
Nos.1 and 15, part of Khasra No.5751.
They had acquired other parts of the last
mentioned plot located in different Khewat
and Mahal. The Lower Appellate Court has
considered a map produced by the
defendants relating to their acquired land,
bearing paper No.20-Ga and remarked that
the total area of Khasra No.5751 shown in
this map is 6.4584 hectares, where the
acquired
land
in
possession
of
the
defendants, indicated in green colour, is 1416-6. Beyond it, an area of 3.0278 hectare
is shown and the area of the Dhobi Ghat
indicated is 0.5152 hectare, in yellow
colour. Maharana Pratap Enclave's area
shown is 0.9770 hectare, Jasrampur Village
an area of 0.1729 hectare and the Sports
Colony is shown with an area of 1.7660
634 INDIAN LAW REPORTS ALLAHABAD SERIES
hectares. In the map aforesaid, relating to
Scheme-01
of
the
defendants,
the
boundaries show Maharana Pratap Enclave
and Jasrampur Village not acquired, but the
rest is shown acquired. The total area of
acquired land in this map, according to the
Lower Appellate Court, turns out to be 2022 bigha pucca.

31. Another map was produced by the
defendants, bearing paper No.21-Ga, where
the total area of Khasra No.5751 is shown
to be 6.6500 hectares, denoted by bold
dotted line in black. In the said map, it is
noticed that the south-western part of
Khasra No.5751 is shown comprising 1466
square meters of encroached land, which
includes Village Jasrampur, Dhobi Ghat,
Sports Colony, Maharana Pratap Enclave to
the extent of 1683 square meters, 4350
square meters, 1757 square meters and
1228 square square meters, respectively.
This map, presented by the defendants, has
been remarked by the Lower Appellate
Court to be discrepant from the earlier map,
bearing paper No.20-Ga. It is also said
about the latter map, bearing paper No.21Ga, that the acquired land shown, does not
include the area of Dhobi Ghat nor of the
Sports Colony, which show that both the
maps are contrary to the acquisition
proceedings, including the lay out plan,
bearing paper No.93-Ga. In the lay out
plan, the total area shown is 16-0-0, out of
which 1740 square meters is recorded to be
abadi, leaving a net area of 3.7180 hectares,
which works out to 15-0-0. In the said plan,
the Sports Colony is shown to the north of
the acquired land, stretching up to the road
and to the east, abutting public drain. This
plan does not show the land of the Dhobi
Ghat, which was acquired land. It is also
said by the Lower Appellate Court that in
order to make up for the shortage of area
between the acquired land and that
available on the spot, which is short by 2-00 of land of the Dhobi Ghat, included in the
acquisition, but left out in the acquisition
map/ plan, the defendants have moved
southwards, that is in Khasra No.5751,
including in the plan the unacquired land
with a dishonest motive. The lay out plan,
which has included the unacquired land in
the Khasra to the south to make up for the
lost area of Dhobi Ghat's acquired land,
has been drawn up with a dishonest motive
because the defendants have admitted that
they have taken possession of 12-0-0 land,
whereas the plan shows the area of the
acquired land possessed as 15-0-0.

32. There is also a remark that the
Trial Court has wrongly regarded Allah
Mehar's land as one belonging to plaintiff
No.1, Sirajuddin, also concluding in error
that the plaintiffs have no possession over
the same. This Court must observe that on
these facts, the Lower Appellate Court has
concluded that the only part of Khasra
No.5751, that is included in Khewat Nos.1
and 15 which has been acquired, is Khasra
No.5751/5, admeasuring 2-0-0, belonging
to Allah Mehar, sparing all land in the said
Khasra, belonging to plaintiff No.1 from
acquisition. This is a finding that proceeds
on relevant evidence, but ignores principle.
The principle here, that seems to be
violated by the Lower Appellate Court, is
that while upon a consideration of the
different maps produced by the defendants
and other evidence relating to the acquired
land and the unacquired part of Khasra
No.5751, a very careful mensuration of the
acquired land and the unacquired part of
the Khasra has been done, the location of
the suit property, vis-à-vis the precise plot
number(s), has not been ensured. This
becomes very relevant because what was a
very large Khasra No.5751, located in
different Khewat, has overtime been
9 All. U.P. Avas Evam Vikas Parishad, Lucknow & Anr. Vs. Sirajuddin & Ors.
635
subdivided and assigned different plot
numbers, marked as subdivisions of Khasra
No.5751.

33. The Lower Appellate Court is right
in depending much upon the award passed
by the Land Acquisition Officer, because
possibly the defendants cannot deny what
has been held there. Khasra Nos. 5751/1,
5751/2, 5751/3, 5751/4, 5751/6, 5751/7,
5751/8,
5751/9,
5751/10,
5751/11,
5751/12,
regarding
which
Sheikh
Shafiuddin, an ancestor of plaintiff No.1,
laid claim for compensation before the
Land Acquisition Officer, led to a refusal
on ground that those subdivisions of
Khasra No.5751 were not acquired. There
is a remark in the award that a part of
Khasra No.5751 was sold by Shafiuddin's
ancestor Wahiuddin to Mst. Bhuria, from
whom Allah Mehar inherited it, but he sold
much of this land and now claims
compensation. About this land of Allah
Mehar, which has been acquired, the Land
Acquisition Officer says, stretches up to the
pucca road and drain No.5743 and to the
Dhobi Ghat constructed by him. He is
entitled to compensation of that land. It is
also held by the Land Acquisition Officer
that the southern part of Khasra no.5751
cannot be Allah Mehar's land.

34. There is also a remark in the award
that the defendants have taken possession
of Khewat No.445, Khata Nos.398 and
411, comprised of part of Khasra No.5751,
admeasuring 12-16-6 of nazul land and
Khasra No.5751/5, admeasuring 2-0-0, of
which possession has been taken. Now, to
infer from this remark of the Land
Acquisition Officer, as done by the learned
Judge in the Lower Appellate Court that
Khasra No.5751/5, admeasuring 2-0-0, is
Allah Mehar's land, of which possession
has
been
taken
and,
therefore,
the
defendants attempt to move southwards to
the other subdivisions of Khasra No.5751
upon 5751/1, 5751/2, 5751/3, 5751/4,
5751/6, 5751/7, 5751/8, 5751/9, 5751/10,
5751/11, 5751/12, not 5751/5 to make up
for the lost area of Allah Mehar's acquired
Khasra No.5751/5, is rather conjectural and
as already said, ignores principle. The
principle is if there is doubt about the
location of the suit property in a particular
plot number, it is the duty of the Court to
issue a survey commission, who would
ascertain the precise location of the suit
property in one plot number or the other.
Here, going by the award, there is no
dispute now, since Khasra No.5751 has
been subdivided, that the only part of
Khasra No.5751 included in Khewat Nos.1
and 15, that has been acquired, is 5751/5. It
has been held by the Lower Appellate
Court that this plot belongs to Allah Mehar
and is encroached. The Land Acquisition
Officer has not said that Khasra No.5751/5
belongs to Allah Mehar, but does say that
Allah Mehar's land has been illegally sold
and, therefore, encroached. Therefore, what
is to be determined is whether the suit
property, in respect of which the plaintiffs
claim relief, is part of Khasra No.5751/5 or
a part of it, or is it included in Khasra Nos.
5751/1, 5751/2, 5751/3, 5751/4, 5751/6,
5751/7, 5751/8, 5751/9, 5751/10, 5751/11,
5751/12, all of which have admittedly not
been acquired, except Khasra No.5751/5.

35. It is particularly to be remarked
that now these various subdivided plots of
Khasra No.5751, including the acquired
part, comprising Khasra No.5751/5, are
contiguous plots and location of the suit
property with reference to the precise plot
number would be of the first importance.
There is no dispute about the fact that other
parts of Khasra No.5751, that lie in
different Khewat, is not in issue, because
636 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff No.1 is the owner of Khasra
No.5751 that falls in Khewat Nos.1 and 15.
The controversy, therefore, almost narrows
down to determining if the suit property is
located in Khasra No.5751/5 or away from
it in the other plot numbers of 5751 that are
unacquired. This would most certainly
require
determination
of
the
precise
location, vis-à-vis the plot number of the
suit property through a survey commission
following the three fixed points method. It
would also be possible, in the alternative, to
employ the total station method, if fixed
points are no longer available in the
vicinity.

36. The principle that in case of a
dispute about the location of the property in
one survey plot number or the other, it is
necessary to issue a survey commission,
which would identify the suit property, is
laid down by the Supreme Court in
Shreepat v. Rajendra Prasad and others,
2000 (40) ALR 534: JT 2000 (7) SC 379.
It has been held in Shreepat (supra):

"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 landfrom its previous owner - Premnarayan - by
a registered sale-deed.