Pankaj Naqvi, J.@mdashSri Manish Kumar Nigam filed his appearance on behalf of respondents No. 2/1 and 2/2, which is taken on record. Heard Sri Sanjai Kumar Pandey, learned Counsel for appellant and Sri Manish Kumar Nigam, learned Counsel for respondents No. 2/1 and 2/2.
2. This is plaintiff''s second appeal challenging the judgment and decree of the Courts below, dismissing his suit for permanent injunction and demolition.
3. The plaintiff-appellant instituted the suit alleging that he is in possession of Arazi No. 6 (area 5 decimal) (property in dispute) situate at mauza Mahadev Jharkhandi Tukda Number-1 (Kudaghat Peepaldada) Tappa and Pargana Haweli, Tehsil Sadar, Gorakhpur. It was alleged that as property in dispute was abutting the road, defendants with a view to obtain forcible possession of the same, plaintiff invoked the proceedings u/s 41 of the U.P. Land Revenue Act for demarcation, which came to be decided on 24.1.1979 and the said plot was demarcated. It was alleged that around 2 years prior to the suit, defendants unauthorizedly erected a tin-shed on the northern side of the road of plot in dispute, but on account of paucity of funds, plaintiff could not then initiate appropriate proceedings, but as defendants were threatening from raising further constructions, hence the suit and defendants also raised constructions during the pendency of suit, hence by an amendment, plaintiff also sought a relief of demolishing the same. The defendants contested the suit denying the ownership of plaintiff over the plot in dispute, i.e., Arazi No. 6. It was stated that the said property belonged to Vipat son of Sahtu and Munna Lal son of Kanhai and as they werein need of money, hence they sold 1/2 properly of Arazi No. 2 measuring 12 decimal in favour of defendants by a registered sale-deed on 1.4.1977 and since then defendants are in possession thereof. The Trial Court decreed the suit for injunction but dismissed for demolition. The appeal filed by plaintiff has been dismissed.
4. It is submitted that as proceedings u/s 41 of the U.P. Land Revenue Act were decided in favour of plaintiff-appellant, suit could not have been dismissed for demolition.
5. The issue before the Courts was as to whether the disputed plot is part of Arazi No. 6 or of Arazi No. 2. It was not disputed that plaintiff-appellant is owner of Arazi No. 6. Thus the precise issue before the Courts was as to whether boundaries disclosed in the plaint are that of Arazi No. 6 or not. Undoubtedly, burden to prove the same u/s 102 of the Evidence Act lay on the plaintiff-appellant. Plaintiff-appellant could not discharge the said burden firstly on the ground that in the absence of any consolidation map, same could not be established. The Court rightly held that it was for plaintiff-appellant to establish as to what plot numbers lay on all four sides of the disputed plot, i.e., he ought to have disclosed plot number of Narain on the eastern side, plot number of Vipat, on the western side and his plot number on the eastern side and the same ought to have been tallied with the consolidation map, but as said exercise was not carried out, it could not be inferred that the boundaries of the disputed plots disclosed in plaint tallied with the actual boundaries of Arazi No. 6 at the spot or not.
6. Defendants allege to have raised construction over his Arazi No. 2. In order to ascertain the same, plaintiff-appellant could have obtained a survey commission. However, two survey commissions were executed. First survey commission''s report (Paper No. 139-C) came to be rejected on 3.10.2011. No other contrary survey report relating to this case was on record. Another survey report in Case No. 307 of 1990 was sought to be relied upon by plaintiff, but that was rejected on the ground that the same related to another case, which could not have had any relevance for the purpose of the instant case.
7. Section 41 of the U.P. Land Revenue Act relates to settlement of boundary disputes. Assuming that the plots were demarcated, fact still remained that the burden was upon plaintiff-appellant to establish that boundaries of Arazi No. 6 as disclosed in the plaint tallied with the boundaries as existing at the spot. Since plaintiff-appellant failed to discharge that burden, an order u/s 41 of the U.P. Land Revenue Act, which is summary in nature, would not enure to the benefit of plaintiff-appellant in decreeing the suit.
8. The findings recorded by the Courts below that defendant/respondent raised constructions over his Arazi No. 2 are concluded by findings of fact based on proper appraisal of evidence, to which no perversity could be attributed.
9. No substantial question of law arises.
10. No other plea is urged. The appeal is dismissed with costs.
