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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.50 OF 2005
APPELLANT: Arjun S/o Dadaji Khobragade, aged
(Ori. about 47 years, Occ: Service R/o
Respondent)
Mahadwadi, Tah. & Distt. - Gadchiroli.
PLAINTIFF
-VERSUS-
RESPONDENT: Tulshiram Sitkura Bombole, aged about
(Ori. Appellant) 37 years, R/o Mahadwadi, Tah. And
Defendant Distt. Gadchiroli.
Shri N. R. Bhishikar, Advocate for the appellant.
Shri V. N. Morande, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: DECEMBER 18, 2017.
ORAL JUDGMENT :
1. This appeal filed by the original plaintiff has been heard on the following substantial question of law:
Whether the Appellate Court was right in refusing to rely upon the report submitted by the Commissioner and his map at Ex.98 shall be the substantial question of law for determination in this Second Appeal? ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 01:48:18 :::
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2. It is the case of the plaintiff that he had purchased the land admeasuring 43.5 feet x 25.5 feet for a consideration of Rs.600/-. Towards the northern side of the plaintiff's house, the house of the defendant was situated at a distance of 3 feet.
According to the plaintiff, the defendant started construction on the open piece of land without obtaining necessary permission. Hence, the suit came to be filed for a declaration that the defendant had no right to make said construction. As the defendant completed that construction during the pendency of the suit, the plaint was amended and prayer for removing that encroachment was also made.
3. In the written statement, the case of the plaintiff was denied. It was stated that the construction was in accordance with law and it was not by encroaching the plaintiff's land.
4. The plaintiff moved an application below Exhibit-21 before the trial Court for having the disputed area measured by the Court Commissioner. The defendant gave his no objection and accordingly, the District Inspector of Land Records was appointed to measure the land in dispute. Pursuant thereto, the measurement took place and after the report was filed, the defendant raised objection to that measurement. The trial Court accepted the report of the Commissioner and decreed the suit. The defendant was ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 01:48:18 ::: SA50.05.odt 3/5 directed to remove the construction in question. In the appeal filed by the defendant the appellate Court came to the conclusion that the map at Exhibit-98 was not prepared as per prescribed procedure. On that count, the appeal was allowed by setting aside the judgment of the trial Court. Hence, the plaintiff has filed this appeal.
5. After hearing the respective Counsel alongwith objection raised to the same and the deposition of the Court Commissioner at Exhibit-97, it is found that it is only the plaintiff's area which was got measured. Various admissions given by the Court Commissioner indicate that the document of title was not taken into consideration. Similarly, from the said map, the Commissioner could not identify the boundaries of the plaintiff's plot. The observations of the appellate Court in paragraph Nos.15 and 16 of the judgment, therefore, appear to be justified in the light of evidence on record.
6. However, at the same time, if the appellate Court had found that the Commissioner had not measured the disputed land by using the proper method, it should have directed fresh measurement so as to resolve the question regarding encroachment. The plaintiff could not be blamed for the Commissioner not carrying out the commission properly. I find ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 01:48:18 ::: SA50.05.odt 4/5 that in the facts of the present case, the proceedings deserve to be remanded to the trial Court to determine the question of encroachment as per the procedure laid down in the case of Vijay Shrawan Shende and others Vs. State of Maharashtra and others 2009(5) Mh.L.J. 279.
7. The substantial question of law as framed is answered by holding that though the appellate Court was right in refusing to rely upon the Commissioner's map at Exhibit-98, it ought to have remanded the proceedings to the trial Court for fresh measurement.
8. In view of aforesaid, the following order is passed: (1) The judgment of the trial Court in Regular Civil Suit No.15/1992 as well as the judgment of the appellate Court in Regular Civil Appeal No.37/2002 are quashed and set aside. (2) The proceedings in Regular Civil Suit No.15/1992 are restored. The trial Court shall decide the suit afresh in the light of observations in the judgment in the case of Vijay Shrawan Shende (supra).
(3) The parties are at liberty to amend their pleadings and lead further evidence if they so desire. For said purpose, the parties shall appear before the trial Court on 15-1-2018. As the suit is of the year 1992, the proceedings are expedited and suit ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 01:48:18 ::: SA50.05.odt 5/5 shall be decided on its own merits and in accordance with law by the end of October, 2018.
(4) The second appeal is allowed in aforesaid terms. No costs.
JUDGE /MULEY/ ::: Uploaded on - 20/12/2017 ::: Downloaded on - 23/12/2017 01:48:18 :::