CHHANGUR PRASAD Vs. STATE OF U.P.

JUDGEMENT

(1.) Counter affidavit filed today is taken on record. Counsel for the petitioner does not propose to file rejoinder affidavit.

(2.) This writ petition has been filed against the order of Commissioner dated 30.3.2017, allowing the appeal filed by respondents-4 and 5, against the order of SDO dated 17.3.2016, in Case No. 278/2015, u/s 41 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the 'Act').

(3.) The petitioner filed an application u/s 41 of the Act for settlement of boundary of plot nos. 919, 920 and 973-gha of village Kandva, pargana Dehat Amanat, district Varanasi on 28.10.2014. On this application, a preliminary report has been called for from the Lakhpal. SDO, after being satisfied on the basis of preliminary report that boundary of the aforesaid plots were dismantled on the spot, initiated regular proceeding u/s 41 of the Act. In pursuance of the order of SDO, Revenue Inspector conducted a survey on the spot and submitted his report dated 7.4.2015, along with survey map, prepared during survey on the spot. According to this report of Revenue Inspector, no surrounding plots of the aforesaid plots were affected in the settlement of boundary of plot nos. 919, 920 and 973-gha. Respondents-4 and 5 appeared before the Collector and filed their objections on 8.5.2015. SDO after hearing the parties, by order dated 17.2017, confirmed the report dated 7.4.2015 and directed for settlement of boundary according to the aforesaid field book and report. Respondents-4 and 5 filed an appeal against the aforesaid order, registered as Appeal No. 219/2016, which was heard by Commissioner, who by the impugned order dated 20.2017 found that although there were other co-sharers in plot nos. 919, 920 and 973-gha, Chhangur alone had filed the application u/s 41 of the Act for settlement of boundary, as such, the application was not maintainable. He further found that in the proceeding u/s 41 of the Act, no party can be given possession over a specific portion of the land. So far as respondents-4 and 5 are concerned, their case relating to title over plot no. 918 is pending before the SOC and there is interim order also dated 11.6.2007 in the appeal filed by respondents-4 and 5. Lekhpal has done the measurement on the spot according to the map, although the measurement ought to have been done according to the settlement map and in the survey report, fixed point has been taken as Chaumedha, which was illegal. On this finding, he allowed the appeal, set aside the order dated 17.2016 and remanded the matter to SDO for fresh decision in the matter. Hence, this writ petition has been filed.