sa586.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 586 of 2017
Ramdas Govindrao Kharwade,
aged about 80 years,
occupation - Goldsmith,
resident of Hingani, Tq. Seloo,
Distt. Wardha. ..... Appellant
Org.Plff.
Versus
Shri Arvind son of Ramchandra
Mude,
aged about 65 years,
occupation - Medical Store,
resident of Hingani, Tq. Seloo,
Distt. Wardha. ..... Respondent
Org.Deft.
*****
Mr. Gehlot, Adv., holding for Mr. A. M. Ghare, Adv., for the
appellant.
Mr. N. S. Deshpande and Mr. A. M. Balpande, Advs., for
respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 11th December, 2017 ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:44 ::: sa586.17 2 ORAL JUDGMENT:
01. Admit on the following substantial question of law:-
"Considering the relief sought by the plaintiff for removal of encroachment, whether the Court should have exercised power under provisions of Order-XXVI, Rule 9 of the Code of Civil Procedure, 1908?" Shri N. S. Deshpande, learned counsel, waives notice on behalf of the respondent. Heard finally with consent of counsel for the parties.
02. The appellant is the original plaintiff who had filed a suit for removal of encroachment as well as for relief of perpetual injunction. According to the plaintiff, he was the owner of suit plot shown by letters "A,B,C,D,E,F,A". According to the plaintiff, defendant's plot was on the Northern side of his plot. In December, 2001, the defendant started construction of his house. According to the plaintiff, this construction was undertaken by making some encroachment. Though request was made to the Gram Panchayat to take appropriate action, same was not done. Hence, after issuing a notice, the aforesaid suit came to be filed.
03. In the Written Statement, it was denied that any ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:44 ::: sa586.17 3 encroachment had been committed. The defendant filed a counter- claim praying that the original plaintiff be restrained from obstructing the defendant from carrying out construction.
04. Before the trial Court, the parties examined themselves and their witnesses. Plaintiff examined PW 3 - Gajanan Admane who had measured the suit plot. The defendant also measured his plot and justified the construction. The trial Court found that measurements carried out by both parties were not satisfactory. The suit, therefore, came to be dismissed. The appellate Court confirmed that decree. Hence the present Second Appeal.
05. Shri Gehlot, learned counsel for the appellant, submitted that the suit as filed was for removal of encroachment alleged to be committed by the defendant. Both the Courts after finding that the measurements carried out by the parties were not satisfactory, ought to have appointed a Commissioner in exercise of powers under Order- XXVI, Rule 9 of the Civil Procedure Code, 1908. Drawing support from the decision in Vijay Shrawan Shende & others Vs. State of Mah. [2009 (5) Mh.L.J. 279], it was submitted that Commissioner ought to have been appointed to undertake a joint measurement. In absence of such joint measurement, the dismissal of the suit was not warranted. ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:44 :::
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06. Shri N. S. Deshpande, learned counsel for the respondent, supported the impugned judgment. It was submitted that the burden to prove encroachment was on the plaintiff and he having failed to prove the same, dismissal of the suit was proper. The construction carried out by the defendant was in his own property and, therefore, no prejudice was caused by not appointing the Court Commissioner. It was, however, pointed out that the defendant before the trial Court had moved an application for appointment of a Commissioner to enable a joint measurement of both the plots. Though this application was allowed by the trial Court, it was submitted that the commission was never executed.
07. I have heard the learned counsel for the parties at length and perused the impugned judgments.
08. The suit as filed is for removal of encroachment which is alleged to be committed by the defendant. The plot of the defendant adjoins the plot of the plaintiff. In normal circumstances, a joint measurement of both the plots for answering the question as to whether encroachment was committed or not was warranted. It appears that the plaintiff got measured his plot alone and map at ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:44 ::: sa586.17 5 Exh.52 came to be placed. This measurement was not accepted by the trial Court. The defendant had sought appointment of a Commissioner for joint measurement; but said commission was not got executed. In other words, both the plots in question have not been got measured jointly. As held in Vijay Shrawan Shende [supra], in proceedings for removal of encroachment, it is always better that the adjoining plots are measured so that the question with regard to encroachment is answered satisfactorily. Considering the fact that as per Exh.52, measurement of the plaintiff's plot was carried out and as per the application of the defendant, a joint measurement of both the plots was sought, I find that a joint measurement of both the plots is necessary. It cannot be lost sight of that the defendant had also filed a counter-claim seeking perpetual injunction.
09. Accordingly, the substantial question of law as framed is answered in the affirmative and the trial Court should have exercised power by appointing a Court Commissioner.
10. In view of aforesaid, the following order is passed:- [a] The judgment of the trial Court dated 31st July, 2010 passed by learned Civil Judge [Junior ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:47:44 ::: sa586.17 6 Division], Seloo, Distt. Wardha, in Regular Civil Suit No. 39 of 2008 [old Regular Civil Suit No. 42 of 2003] as well as the judgment of the appellate Court dated 16th April, 2014 in Regular Civil Appeal No. 194 of 2010 are quashed and set aside.
[b] The proceedings are remanded to the trial Court to decide the suit afresh and after taking into consideration the law laid down in Vijay Shrawan Shende [supra]. It is open for the parties to lead additional evidence if they so desire. The trial Court shall decide the suit expeditiously and preferably by the end of the year 2018.
11. Second Appeal is allowed in aforesaid terms. No costs.
Judge
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