sa561.04
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 561 of 2004
Sanjay Shankar Umale,
aged about 38 years,
occupation - Agriculturist,
resident of Babhuulgaon
[Jahagir]. ..... Appellant
Org.Deft.
Versus
Shri Ruprao Atmaramji Babade,
aged - adult,
occupation - service,
resident of Babhulgaon [Jahagir],
Tq. & Distt. Akola. ..... Respondent
Org.Plff.
*****
Mr. S. G. Joshi, Adv., for the Appellant.
Mr. U. N. Vyas, Adv., for the respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 14th December, 2017 ORAL JUDGMENT: ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:21 ::: sa561.04 2
01. This appeal at the instance of the original defendant has been heard on the following substantial question of law:-
"Whether the encroachment could be proved on the basis of the map and the evidence of PW 3 when the measurement was not carried out in accordance with the procedure prescribed by law?"
02. The respondent is the original plaintiff who had filed a suit for removal of encroachment and delivery of possession. According to the plaintiff, he is the owner of Plot No. 28 admeasuring about 150 square meters. The defendant is the owner of adjoining Plot No.27. It is the case of the plaintiff that the defendant committed encroachment to the extent of 39 square feet. Though notice was issued to the defendant, the same was not removed. Hence, the suit came to be filed.
03. In the Written Statement, it was denied that any such encroachment was made. It was pleaded that the construction was within the boundaries of Plot No. 27.
04. The plaintiff examined himself and his witnesses which included an Architect as PW 3. This witness prepared a map at Exh.42 ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:21 ::: sa561.04 3 showing encroachment to the extent of 39 sq. ft. The defendant also examined himself and another witness. The trial Court accepted the map at Exh.42 prepared by the PW 3 and decreed the suit. The appellate Court confirmed that decree.
05. It is submitted by Shri S. G. Joshi, learned counsel for the defendant, that the map at Exh.42 was prepared without giving due notice to the defendant and without following the prescribed procedure. He submitted that this aspect was clear from the deposition of said witness. Merely because said witness was a Govt. Architect, it did not follow that his evidence should be accepted. He, therefore, submitted that the suit was liable to be dismissed.
06. Shri U. N. Vyas, learned counsel for the original plaintiff, supported the impugned judgment. According to him, the map at Exh.42 was prepared by following the due procedure. The encroachment was clearly shown and as that map has been accepted by both the Courts, no interference is called for.
07. I have heard the learned counsel for the parties at length and I have perused the record of the case. On perusal of the deposition of PW 3 below Exh.30, it can be seen that the said witness ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:21 ::: sa561.04 4 had prepared the map at Exh.42. However, in his cross-examination, he admitted that while measuring the plots in question, the signatures of adjoining plot owners and witnesses were not obtained. Permanent marks were not stated in the map. The method which was followed while carrying out measurement was also not mentioned therein.
The manner in which the extent of encroachment has to be determined has been laid down in Vijay Shrawan Shende & others Vs. State of Mah. [2009 (5) Mh.L.J. 279]. In that judgment, a detailed procedure as to the manner in which the aspect of encroachment has to be determined has been laid down. Seen in that context, It is clear that the map at Exh.42 has not been prepared as per the said procedure. No notice was issued to the defendant and in his absence, the plots were measured. I find that the aspect of encroachment deserves to be decided afresh by following the law as laid down in the aforesaid judgment. The substantial question of law is accordingly answered by holding that the encroachment has not been proved as the procedure prescribed by law has not been followed.
08. In view aforesaid, the impugned judgments cannot be sustained. The judgments passed in Regular Civil Suit as well as in Regular Civil Appeal are quashed and set aside. The proceedings in Regular Civil Suit No. 96 of 2002 are remanded to the trial Court for ::: Uploaded on - 18/12/2017 ::: Downloaded on - 20/12/2017 01:18:21 ::: sa561.04 5 fresh adjudication after following the law as laid down in Vijay Shrawan Shende & others [supra]. For said purpose, the parties shall appear before the trial Court on 8th January, 2018. The parties are at liberty to amend their pleadings and lead further evidence if they so desire. As the suit is of the year 2002, the proceedings are expedited. The suit shall be decided by the end of December, 2018. The trial Court shall not be influenced by any observations made in this judgment and suit shall be decided on its own merits.
09. Appeal is allowed in aforesaid terms. No costs.
Judge
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