1 sa454.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.454/2016
Trambak Sitaram Bahakar,
aged about 56 years, Occ. Agriculturist,
r/o Chohogaon, Tq. Barshi Takli,
Dist. Akola. .....APPELLANT
...V E R S U S...
1. Bhagwan Namdeo Bahakar,
aged 36 years, Occ. Agriculturist.
R/o Chohogaon, Tq. Barshi Takli,
Dist. Akola.
2. Pundlik Sitaram Bahakar,
aged 62 years, Occ. Agriculturist,
r/o Chohogaon, Tq. Barshi Takli,
Dist. Akola. ...RESPONDENTS
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Mr. U. J. Deshpande, Advocate for appellant.
Mrs. S. W. Deshpande, Advocate for respondents.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 22.11.2017 ORAL JUDGMENT
1. Heard Mr. U. J. Deshpande, Advocate for appellant and Mrs. S. W. Deshpande, Advocate for respondents.
2. After hearing both the learned counsel, it appears that the second appeal involves substantial question of law to the extent that once the appellate Court recorded a finding in paragraph 29 of its judgment that on the basis of the oral as well as documentary ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:23 ::: 2 sa454.16.odt evidence filed on record by both the parties, it is very difficult to come to the conclusion of deciding the encroachment or not, still the lower appellate Court has proceeded with deciding the appeal. Therefore the appeal is Admitted, on the following substantial questions of law.
(i) Whether the lower appellate Court was justified in deciding the appeal without taking aid from the Court Commissioner to decide the issue about the encroachment?
(ii) Whether the suit is required to be remanded to the trial Court for having a report from the Court Commissioner?
Both the learned counsel submit that the matter can be heard forthwith. Accordingly, the matter is taken up for final hearing.
3. The appellant is owner of the field survey no.15/1 whereas the respondent-original plaintiff is owner of field survey no.15/2. According to the respondents-plaintiffs, the appellant has made encroachment on their land to the extent of 15 R. In order to prove encroachment, the respondents have adduced evidence of Satish Hatekar (PW5), the Measurer. He has proved the map Exh.-
52. Also according to the respondents, the appellant has executed a Chit, Exh.-58. Though, this material was available with the lower appellate Court, still the appellate Court was of the view that from ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:23 ::: 3 sa454.16.odt the available evidence, both oral as well as documentary, it is difficult to record finding about the encroachment. If that be so, the learned lower appellate Court, in my view, ought to have exercised powers under Order XLI Rule 25 of the Code of Civil Procedure and ought to have remanded the matter for a limited purpose for appointing the Court Commissioner i.e. Taluka Inspector Land Records and ought to have obtained the report and ought to have decided the appeal afresh.
4. In view of above, I am of the view that for this limited purpose only, the matter is required to be remanded back to the trial Court and the trial Court shall, by exercising the powers, pass the appropriate orders for appointment of Cadastral Surveyor with a direction that he shall, after following the process by giving notices to both the appellant and respondents and other interested parties, measure the lands the appellant and the respondents and shall file a report with the trial Court. The trial Court thereafter shall given an opportunity to the parties to the suit to raise objections to the report of the Cadastral Surveyor, if any. The trial Court thereafter shall decide the issue of encroachment. It is to be noted that the Surveyor shall also file on record the Superimposed Tipan Extract on the tracing paper in respect of the measurement exercise. ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:23 :::
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5. In view of above, the judgments and decrees passed by both the Courts below are set aside. The matter is remanded back to the trial Court for deciding the limited issue of encroachment. The trial Court shall pass an appropriate order and after giving an opportunity of hearing to both the parties shall decide the issue of encroachment in accordance with law within eight months from the date of appearance of the parties before it. Both the parties agree to appear before the trial Court on 11.12.2017. Both the parties shall extend full cooperation to the trial Court and shall not unnecessarily obtain adjournments from the Courts. If it is noticed by the trial Court that any of the parties is unnecessarily trying to prolong the litigation then it will be open for the learned trial Court to take necessity steps in the matter.
The appeal is disposed of accordingly. No order as to costs.
JUDGE kahale ::: Uploaded on - 23/11/2017 ::: Downloaded on - 25/11/2017 01:32:23 :::