Bombay High Court
Dnyaneshwar Shivaji Bodke vs Mangaldas Govinda Bodke And Ors on 26 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:15147
26-WP11490-2023.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11490 OF 2023
Dnyaneshwar Shivaji Bodke ...Petitioner
Versus
1. Mangaldas Govinda Bodke
2. Dalpat Tryambak Bodke
3. Shridhar Punjaram Bodke
4. Kacharabai Balu Bodke
5. Balu Mahadu Bodke
SANTOSH 6. Barku Mahadu Bodke
SUBHASH
KULKARNI 7. Devidas Motiram Wagh
Digitally signed by
SANTOSH SUBHASH
8. Mohanlal Motiram Wagh
KULKARNI
Date: 2025.04.02
18:16:47 +0530
9. Madav Nimbaji Bodke
10. Parashram Laxman Bodke ...Respondents
Mr. Jayendra Khairnar, for the Petitioner.
Mr. Mahendra Sandhyanshiv, for the Respondents.
CORAM: N. J. JAMADAR, J.
DATED: 26th MARCH, 2025
JUDGMENT:-
1. Rule. Rule made returnable forthwith and with the consent of the learned Counsel for the parties, heard finally.
2. The background facts leading to this petition can be stated in brief as under:
2.1 The petitioner - original plaintiff assails the legality, propriety and correctness of an order dated 12 th August, 2022 passed by the learned Civil Judge, Malegaon, whereby an application (Exhibit-5) preferred by the plaintiff to appoint a 1/10 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 06/04/2025 00:17:35 ::: 26-WP11490-2023.DOC Commissioner to measure the suit properties came to be rejected and another order dated 6th May, 2023, whereby an application (Exhibit-57) preferred to review the first order also came to be rejected.
2.2 The plaintiff claims to be the holder of suit lands bearing Gat Nos.96/1 and 96/2 ("suit properties I and II"). Defendant Nos.1 to 11 are the holders of the suit lands (properties described at Sr. Nos.III to X).
2.3 Tryambak Bodke was the original holder of the suit properties. Trymbak had five sons namely Govind, Laxman, Kashinath, Shivaji, the father of the plaintiff, and Dalpat. There was a partition of the joint family properties amongst the sons of Tryambak. In the said partition, land bearing Gat No.134 admeasuring 62 Are and Gat No.96/1 admeasuring 72 Are was allotted to Kashinath Tryambak Bodke.
2.4 The plaintiff claimed to have purchased the land bearing Gat No.96/1 admeasuring 72 Are from Kashinath Bodke, under a registered Sale Deed dated 22nd June, 1987. The plaintiff and his father had been in possession and cultivation of the suit lands. There was a dispute inter se plaintiff and his father.
Taking undue advantage of the said dispute, the defendants, the plaintiff alleges, committed encroachment over the suit land 2/10 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 06/04/2025 00:17:35 ::: 26-WP11490-2023.DOC bearing Gat No.96/1 and 96/2. The plaintiff had a private measurement. It transpired that defendant No.1 to 11 had committed encroachment to the extent of 32 Are land, over the suit lands. Hence, the suit for removal of encroachment and delivery of possession of the encroached land. 2.5 In the said suit, the plaintiff filed an application for appointment of the City Survey Officer, Malegaon, to measure the suit lands bearing Gat Nos.96/1 and 96/2 and all the sub- divisions of Gat No.96.
2.6 The defendants resisted the application. The defendants contended that Kashinath Bodke, predecessor-in-title of the plaintiff, was allotted only 40 Are land. The plaintiff was not the holder of 32 Are land, as claimed. Since defendant No.2 had instituted a suit against the plaintiff being RCS No.249/2019 in the Civil Court at Malegaon to restrain the plaintiff from causing obstruction to the possession and enjoyment of the defendants over the said 32 Are land, the instant suit was instituted by the plaintiff to exsert pressure on the defendants. 2.7 By the impugned order, the learned Civil Judge was persuaded to reject the application on the premise that the rough map, relied upon by the plaintiff, indicated that the encroached portion was 67 Are and it appeared that the plaintiff 3/10 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 06/04/2025 00:17:35 ::: 26-WP11490-2023.DOC was seeking removal of encroachment over the land which did not belong to the plaintiff. It was further observed that the measurement of the agricultural land was required to be carried out by a Cadestal Surveyor and the plaintiff had prayed for appointment of a City Survey Officer. Thus, the application came to be rejected.
2.8 The application for review (Exhibit-57) also met the same fate.
3. Being aggrieved, the plaintiff has invoked the writ jurisdiction.
4. Mr. Khairnar, the learned Counsel for the petitioner, submitted that the learned Civil Judge committed a manifest error in rejecting the application for appointment of the Court Commissioner when the suit has been instituted for removal of encroachment and recovery of possession of the encroached portion of the suit property. The learned Civil Judge did not appreciate the fact that in case of a boundary dispute or allegations of encroachment, the issue cannot be adjudicated without measurement of the lands by a Surveyor. By ascribing unsustainable reasons the learned Civil Judge rejected the application, urged Mr. Khairnar.
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5. In opposition to this, Mr. Sandhyanshiv, the learned Counsel for the respondents, would urge that the learned Civil Judge was justified in rejecting the application for appointment of the Court Commissioner as the plaintiff was asserting ownership over the property which ex facie did not belong to the plaintiff. Attention of the Court was invited to the contentions in the written statement of the defendants, especially as regards the manner in which the joint family properties were re- partitioned among the sons of Tryambak Bodke. Emphasis was laid on the facts that only 40 Are land out of Gat No.96/1, was allotted to Kashinath Tryambak Bodke and the predecessor-in- title of the plaintiff's and 32 Are land was kept in common enjoyment. Thus, the endeavour of the petitioner was to collect evidence regarding the proprietary claim of title over the said 32 Are land. From this standpoint, according to Mr. Sandhyanshiv, the learned Judge was justified in rejecting the application for appointment of the Court Commissioner.
6. To begin with, the nature of the suit. The substance of the claim of the plaintiff is that he had acquired Gat No.96/1 admeasuring 72 Are from Kashinath Bodke to whom the said land was allotted under the partition of the joint family properties. Defendant Nos.1 to 11 have committed encroachment 5/10 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 06/04/2025 00:17:35 ::: 26-WP11490-2023.DOC over the said land from all sides as the plaintiff was not residing at village Jeur, Malegaon. The plaintiff had requested the defendants to have a joint measurement. But they declined to have measurement of all the sub-divisions of Gat No.96. A private measurement, carried out by the plaintiff of his land, revealed encroachment by the defendants. Plainly, the suit is for removal of encroachment and delivery of possession of the alleged encroached portion of the suit properties I and II.
7. The learned Civil Judge proceeded on the premise that the plaintiff could not bring prima facie material to show proprietary title over 72 Are land out of Gat No.96/1 and, therefore, the appointment of the court Commissioner to measure the suit land was not necessary.
8. From the perusal of the material on record, it appears that land bearing Gat No.96/1 admeasuring 72 Are is mutated in the name of the plaintiff in the record of rights. It also appears that the name of Kashinath Bodke, the predecessor-in-tile of the plaintiff was mutated to Gat No.96/1 admeasuring 72 Are. The same area and description of the property finds mention in the Sale Deed dated 26th June, 1987 under which the plaintiff purchased Gat No.96/1 from Kashinath Bodke. 6/10 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 06/04/2025 00:17:35 :::
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9. In the face of aforesaid material which prima facie indicates that Gat No.96/1 admeasuring 72 Are stood in the name of Kashinath Bodke and, post acquisition, in the name of the plaintiff, the learned Civil Judge could not have negatived the claim of the plaintiff terming it to be actuated by a design to exert pressure on the defendants.
10. Once there is prima facie material to show that the land bearing Gat No.96/1 admeasured 72 Are and the plaintiff is holder thereof, and plaintiff alleges encroachment over 32 Are land out of Gat No.96/1, the trial court ought to have posed unto itself the question as to whether the appointment of the Court Commissioner would elucidate the matter in controversy and assist the Court in arriving at a just decision of the case.
11. It is well neigh settled that when there is a dispute over the boundaries of the lands or the suit is for removal of encroachment, the identity of the land, sites thereof and encroachment, if any, can only be determined by having a measurement by a surveyor.
12. A useful reference, in this context, can be made to the judgment of the Supreme Court in the case of Shreepat Vs. Rajendra Prasad and ors.1, wherein it was enunciated that when 1 2000(6) Supreme 389.
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26-WP11490-2023.DOC there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No.257/3 of Khasra No.257/1.
13. In the case of Haryana Waqf Board vs. Shanti Sarup2 the Supreme Court has emphasised that in the case of demarcation of the disputed land it is appropriate for the Court to direct the investigation by appointing a local commissioner as provided under Order XXVI Rule 9 of the Code of Civil Procedure.
14. In the case of Kolhapuri Bandu Lakade vs. Yallappa Chinappa Lakade (dead) through Pooja @ Poojari Y. Lakade 3, a learned Single Judge of this Court after placing reliance on the judgment of the Supreme Court in the case of Haryana Waqf Board (supra) culled out the legal position in paragraph 14 as under:
"14. It can thus clearly be seen that the Apex Court in the case of Haryana Waqf Board cited supra in enquivocal terms has held that in the case of demarcation of disputed lands, it is appropriate for the Court to direct the investigation by appointing a Local Commissioner as provided under Order XXVI, Rule 9 of the Code of Civil Procedure. The other learned Judges of this Court, namely, M. S. Vaidya, J., S. T. Kharche, J., A. P. Bhangale, J., F. M. Reis, J., have also held 2 (2008) 8 SCC 671.
3 (2011) 3 Mah LJ 348.8/10
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26-WP11490-2023.DOC that in case of dispute of encroachment of a site, an appointment of Court Commissioner who could be City Survey Officer or Cadestal Surveyor for taking joint measurement of the property owned by the plaintiff and defendant for the purpose of local investigation under Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just decision of the case. It has also been held by this Court that merely because a Court Commissioner is appointed, it will not prejudice the interest of either of the parties. It has been held that if any of the parties aggrieved by the report of the Court Commissioner, an opportunity would be available to that party to cross- examine the Court Commissioner and to point out as to how his conclusions were not correct. It has further been observed that the party who was not aggrieved would also prove how his conclusions are correct."
(emphasis in origin)
15. The aforesaid being the position in law, in the facts of the case at hand, the learned Civil Judge committed an error in law in refusing to exercise the jurisdiction vested in him to appoint a Cadestal surveyor to measure the suit properties I and II and all the sub-divisions of Gat No.96, to elucidate the matter in controversy. In the absence of such a joint measurement, the Court would not be in a position to determine the issue of encroachment, if any. Resultantly, the impugned orders deserve to be quashed and set aside and the application for the appointment of the Court Commissioner deserves to be allowed.
16. Hence, the following order:
:ORDER:
(i) The petition stands allowed. (ii) The impugned orders stand quashed and set aside. 9/10 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 06/04/2025 00:17:35 ::: 26-WP11490-2023.DOC
(iii) The application for appointment of Court Commissioner to measure the suit properties I and II and all the sub-
divisions of Gat No.96 stands allowed.
(iv) The learned Civil Judge shall appoint the TILR, Malegaon, to have a joint measurement of Gat Nos.96/1, 96/2 and all the sub-divided parts of Gat No.96, demarcate the lands and indicate encroachment, if any, and submit a report.
(v) The plaintiff shall bear the charges of the measurement to be carried out by TILR.
(vi) Rule made absolute in the aforesaid terms.
(vii) Petition disposed.
No costs.
[N. J. JAMADAR, J.] 10/10 ::: Uploaded on - 02/04/2025 ::: Downloaded on - 06/04/2025 00:17:35 :::