IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1184 of 2009 (M/S) 1. Shruti Fruits Pvt. Ltd. Kashipur through its Director, Sri Amit Kumar, S/o Rajendra Kumar, R/o Mohalla Rahamkhanni, Kashipur, District-Udham Singh Nagar, 2. Ajay Kumar Agrawal S/o Rajendra Kumar, R/o Mohalla Rahamkhanni, Kashipur, District-Udham Singh Nagar. ………… Petitioners Versus Smt. Sureiya W/o Mohd. Asraf Siddiqui, R/o Mohalla Thana Savik, Kashipur, District Udham Singh Nagar. ……… Respondents Sri Sharad Sharma, Senior Advocate, assisted by Sri Jagdish Bisht, learned counsel for the petitioners. Date: July 24, 2009 Hon’ble B.S.Verma, J. By means of this petition, the petitioners have sought writ in the nature of certiorari quashing the impugned order dated 6th July, 2009, whereby the application filed by the plaintiff (respondent herein) for Survey Commission was allowed. It has further been prayed by the petitioners that during the pendency of writ petition, further proceedings of Suit No. 59 of 2009 be stayed. 2. Brief facts of the case, giving rise to the writ petition, are that suit for permanent injunction was 2 instituted by the respondent (petitioners herein) restraining the defendants to interfere in plot No.359, situated at Village-Bailjuri, Tehsil-Kashipur. According to the plaintiff/respondent, during the pendency of the suit she allegedly raised a wall in her plot and according to the petitioners/defendants, the wall was already in existence in their plot No.358. It is also contended that the wall was also demolished by the plaintiff. The plaint was amended and relief ‘B’ was sought for mandatory injunction to demolish the wall allegedly constructed by the petitioners /defendants during the pendency of the suit. 3. An application for issuance of the commission (paper No.21-C) was moved before the trial court, against which the petitioners filed objections that the plaintiff/respondent has a remedy to demarcate her plot. The learned trial court, after hearing the learned counsel for the parties, came to the conclusion that it is a boundary dispute between the plot Nos. 358 & 359. As per application, the prayer was made for identification whether the wall, which according to the petitioners, is in plot No.358 and according to respondent, was raised by the petitioners during the pendency of suit in plot No.359, and the trial court, relying upon the judgment of the Apex Court in Sripat versus Rajendra Prasad and others [2000 JTR, Page 774 (Supreme Court)], has allowed the application of the plaintiff/respondent. In the aforesaid case, the Apex Court has held as under:- “Where there is a serious dispute with regard to the area and boundaries of land in 3 question, especially with regard to its identity, the Courts should get the identity established by issuing a Survey Commission to locate the plot in dispute to find out real controversy in the case”. 4. Shri Sharad Sharma, learned Senior Advocate appearing on behalf of the petitioners, has vehemently urged that the learned trial court has not applied its mind, while passing the impugned order and did not consider the objections of the petitioners. 5. Learned counsel for the petitioners has further contended that this judgment is not applicable in the present case. It has to be read in consonance with the relief sought in the plaint. The suit was filed for declaration and possession. This argument of the learned counsel for the petitioners cannot be accepted. The facts of this case are almost similar. In the above cited case, there was also a dispute of two plots. On the issue, whether the wall which was allegedly raised by the petitioners during the pendency of the suit, has been raised in plot No.358 or plot No.359, the learned trial court has rightly issued Commission to identify whether the wall is situated in plot No. 358 or plot No.359. 6. It has further been contended that the objection was not considered. I have perused the objections filed by the plaintiff/respondent. The only objection was raised that the remedy is available to the plaintiff for demarcation under Section 41 of the U.P. Land Revenue Act, 1901. It is a legal argument. According to the plaintiff/respondent, the wall was 4 raised by the petitioners during the pendency of suit. The Civil Court has jurisdiction to decide the dispute itself. 7. In view of above, the writ petition has no merit and is dismissed in limine. (Stay Application No.6304/2009 stands disposed of accordingly.) (B.S. Verma,J.) 24.07.2009 P.Singh 5