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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.68/2016
Darshan s/o Kapurchand Daftari,
aged 65 years, Occ. Business,
r/o Nalwadi, Tq. Dist. Wardha. .....APPELLANT
...V E R S U S...
1. Archana Wasudeorao Mauskar,
aged 35 years, Occ. Nil.
2. Ramesh Wasudeorao Mauskar,
aged 51 years, Occ. Nil.
3. Balkrishna Wasudeorao Mauskar,
aged 35 years, Occ. Nil.
All r/o Laxminagar, Wardha,
Tq. Dist. Wardha. ...RESPONDENT
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Mr. P. V. Ghare, Advocate for appellant.
Mr. M. R. Johrapurkar, Advocate for respondents.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 06.11.2017 ORAL JUDGMENT
1. Heard Mr. P. V. Ghare, Advocate for the appellant and Mr. M. R. Johrapurkar, Advocate for respondents.
2. This Court had on 20.02.2107 framed the following questions of law.
(i) Whether the lower appellate Court committed an error in going into the question of title of the plaintiff over the suit property?
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(ii) Whether the claim for removal of
encroachment is based upon the measurement of the suit property placed on record?
3. The present appeal is filed by the original plaintiff. In the plaint itself, it has been stated by the plaintiff that the plot in question was purchased by the plaintiff from the owner of the suit field. The trial Court did not frame issue about the title of the plaintiff and has recorded a finding that the present plaintiff sold the property to M/s. Tiwari Land Development Corporation. Whereas the appellate Court has formulated point no.1 to the effect as to whether the plaintiff proves that he is the owner of the suit property?
Thus, the appellate Court, in my view ought to have seen that the parties to the appeal got sufficient opportunity to prove the title, especially when the issue was not framed by the trial Court. On this ground itself the present appeal is required to be allowed and is required to be remanded to the trial Court for consideration under Order XLI Rule 25 of the Code of Civil Procedure.
4. Further, it was also incumbent on the trial Court to appoint the Court Commissioner by exercising powers under Order XXVI Rule 9 of the Code of Civil Procedure in order to reach to the ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 01:44:24 ::: 3 sa68.16.odt conclusion as to whether the defendants have made any encroachment on the suit field.
5. In that view of the matter, the substantial questions of law are answered in the affirmative. The judgments of both the Courts below are set aside and the matter is remanded back to the trial Court with a direction that the trial Court shall frame issue about the title and also appoint Court Commissioner. The trial Court shall, after obtaining Court Commissioner's report, decide the suit by giving an opportunity to both; the plaintiff and the defendants in respect of their objection if any to the report of the Court Commissioner and decide the suit afresh, in accordance with law.
Special Civil suit No.124/1999 is restored to the file. The parties are directed to appear before the learned Civil Judge Senior Division, Wardha on 15.12.2017. The learned Civil Judge Senior Division, Wardha is directed either to decide the suit himself or allot it to any other competent Court having the territorial jurisdiction.
Trial Court is expected to decide the suit as expeditiously as possible keeping in mind that the suit is of the year 1999.
No order as to costs.
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