SMT. JUBAIDA KHATOONversusMOHAMMAD NAQI AND ANOTHER

   HIGH COURT OF JUDICATURE AT ALLAHABAD

              CIVIL REVISION No. - 41 of 2025

Smt. Jubaida Khatoon
                                                  .....Revisionist(s)
                             Versus
Mohammad Naqi And Another
                                                      .....Opposite
                                                            Party(s)

Counsel for Revisionist(s)            :   Manoj Kumar Sharma
Counsel for Opposite Party(s)         :   Tawvab Ahmed Khan

Court No. - 54
                 HON'BLE ANIL KUMAR-X, J.

1. Heard learned counsel for the revisionist and learned counsel
for the revisionist.

2. This revision has been filed by the revisionist against the
impugned judgment and order dated 12.12.2024 passed by the
learned Additional Civil Judge (Junior Division), New Court No.
1, Moradabad, in Original Suit No. 849 of 2018, Mohammad
Naqi Vs. Babu and Others.

3. Briefly stated, a suit for permanent injunction was initially
filed by the respondent/plaintiff, which was subsequently
amended, and an additional prayer seeking possession of the
disputed land was also incorporated by the plaintiff. During the
pendency of the suit, an application under Order XXVI Rule 9
CPC was filed by the revisionist before the learned trial court
seeking appointment of a Survey Commission for the disputed
land. The said application seeking appointment of a Survey
Commission was dismissed by the learned trial court, against
which the present civil revision has been preferred.

4. Learned counsel for the revisionist submitted that, in the suit,
the plaintiff has sought an injunction in respect of Gata Nos. 169,
170, 171 and 172, whereas Gata Nos. 157 and 173 belong to the
revisionist. It was submitted that, unless a Survey Commission is
appointed in respect of the disputed lands, which are contiguous
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                           2


and adjoining to each other, the identification as well as the actual
position of the parties over the disputed property would never be
brought before the Court. The learned trial court overlooked the
pleadings as well as the application filed by the revisionist and
dismissed the said application, holding that the dispute between
the parties was not concerned with the identity of the land but
was a dispute pertaining to ownership arising out of the sale deed.
It was submitted that the finding recorded by the learned trial
court while dismissing the application for appointment of a
Survey Commission is unsustainable, as the trial court failed to
consider that, in the absence of a Survey Commission, the
identity of the properties would remain vague and the respondent,
in the garb of seeking an injunction in respect of his own land,
may also seek a decree of permanent injunction in respect of Gata
Nos. 157 and 173, belonging to the revisionist/defendant. It was
further submitted that the matter has been pending for a
considerable period and the suit has been fixed for judgment in
the month of October.

5. Learned counsel for the respondent, on the other hand,
submitted that the application seeking appointment of a Survey
Commission filed by the revisionist/defendant introduces a
material fact by mentioning Gata Nos. 157 and 173, with regard
to which there is no pleading in the written statement filed by the
revisionist/defendant. It was submitted that the disputed Gata
Nos., of which the respondent is the owner, are the very Gata
Nos. in respect of which he has sought permanent injunction as
well as possession. Therefore, there is no occasion or purpose for
directing a Survey Commission in respect of the disputed
property.

6. Heard learned counsel for the parties and perused the order
passed by the learned trial court.

7. It is apparent that the dispute between the parties is with
regard to possession over the disputed land, while the ownership
thereof has not been disputed. So far as possession over the
disputed land is concerned, the same may be determined by the
learned trial court on the basis of the evidence led by the parties
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                                        during the course of the trial. If the plaintiff is unable either to
                                        prove his possession over the disputed property or to establish the
                                        identity of the disputed property by its boundaries, the same
                                        would be to his detriment and the suit would fail. The
                                        respondent/plaintiff, therefore, cannot suffer any prejudice on this
                                        account.

                                        8. Revision under Section 115 CPC does not lie against rejection
                                        of an application for issue of commission. A trial court or
                                        appellate court is vested with the discretion, under Order 26 Rule
                                        9 CPC, to issue or not to issue a commission for local
                                        investigation and no party to the suit can claim as of right to get a
                                        commission issued for the purpose of local investigation. The
                                        Supreme Court has in the cases of Javed Ali vs. Ahmed Urooz,
                                        2014 (102) ALR 105 (All), Ram Ishwar vs. Laxmi Narain, 2007
                                        (66) ALR 195 (All), M/s Kisanotthan Co-operative Housing
                                        Society, Lucknow vs. O.P. Srivastava, 2007 (25) LCD 919
                                        (All— L.B.) , Lekh Raj vs. Muni Lal, AIR 2001 SC 996 and Dr.
                                        K.C. Tandon vs. IXth Additional District Judge, 1998 (33) ALR
                                        267 (All) has reiterated the same.

                                        9. Accordingly, the revision is dismissed.

                                        September 29, 2026
                                        Mukesh
                                                                                        (Anil Kumar-X,J.)




Digitally signed by :-
MUKESH SRIVASTAVA
High Court of Judicature at Allahabad