Gujarat High Court
Prajapati Karshanbhai Dalabhai vs Chaudhari Velabhai Mansangbhai on 1 September, 2025
NEUTRAL CITATION
C/SA/125/2002 JUDGMENT DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 125 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
No
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PRAJAPATI KARSHANBHAI DALABHAI
Versus
CHAUDHARI VELABHAI MANSANGBHAI
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Appearance:
MR RUTURAJ NANAVATI(5624) for the Appellant(s) No. 1
MR MM TIRMIZI(1117) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 ('cpc', for short) challenging the judgement and decree dated 29.07.2002, passed by the 2nd Joint District Judge, Mehsana in Regular Civil Appeal No.10 of 2002, whereby the appellate Court has allowed the appeal and quashed and set aside the judgment and decree dated 31.12.2001 passed by the Civil Judge (S.D.), Kheralu, Mehsana in Regular Civil Suit No.23 of 1999.
2. For the sake of brevity, the parties herein are referred to as per their original status as that before the trial Court.
3.1 The brief facts arising in the present Second Appeal are that the
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NEUTRAL CITATION
C/SA/125/2002 JUDGMENT DATED: 01/09/2025
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plaintiff claimed to be the owner of the Survey No.413 paiki land admeasuring 4 Acres 24 Gunthas, situated in the Sim of Village Vaav and as the plaintiff got the suit property measured through the District Survey Officer of Mehsana, he received map and measurement dated 22.03.1999 and as per the map and measurement, he found that defendant i.e. owner of Survey No.414 has encroached in Survey No.413 about 0-63-84 Hec.Are.Sq. Mtr of land in Survey No.413 and as the plaintiff requested the defendant to remove the encroachment from Survey No.413 paiki, the defendant refused to remove the said encroachment and, therefore plaintiff filed the suit.
3.2 The defendant appeared in the said suit and filed the written statement vide Exh.18, stating that he has not encroached upon on Survey No.413 and that map and measurement done on 22.03.1999 were before the suit was filed and measurement and map prepared by the District Land Surveyor Officer has not been admitted by the defendant and that defendants were not present when the said map was done by the District Land Surveyor. The trial Court framed issues vide Exh.15, which reads as under:
"(1) Whether the plaintiff proves that plaintiff is entitled to get removed the encroachement made by the defendant -
owner of land bearing Survey No.414 to the extent of 0-63- 84 Hec.Are.Sq mtr of land from 4 Acres 24 Gunthas of land of the plaintiff bearing Survey No.413 paiki ?
(2) Whether the plaintiff proves that plaintiff is entitled to be paid an amount of Rs.3,000/- per year from the date of filing of the suit till the date of removal of encroachment ? (3) Whether the defendant proves that plaintiff intends to get some portion of land bearing survey no.414 which belongs Page 2 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined to the defendant on the basis of illegal measurement and map ?
(4) What order and decree ?
3.3 The plaintiff examined himself vide Exh.43 and the officer of
DLR, Mehsana was examined vide Exh.56 and Talati-cum-Mantri was examined by the plaintiff vide Exh.57. The defendant examined his son vide Exh.69 and the earlier owner of survey no.413 and 414 who have sold the suit property to the plaintiff and the defendant was examined by the defendant vide Exh.75 and after taking into consideration the plaint and the documentary evidence and giving findings on all the issues, the trial Court decreed the suit and directed the defendant to remove the encroachment from Survey No.413 whereby 0-63-84 Hec.Are.Sq mtr of land which was encroached by the defendant and after removing the said encroachment, directed defendant to handover possession of the said portion of land to the plaintiff. Aggrieved by the said judgment and decree passed by the trial Court, defendant filed an appeal being Regular Civil Appeal No.10 of 2002 and after re-appreciating the evidence, the first appellate Court quashed and set aside the judgment and decree passed by the trial Court and allowed the said appeal. Hence, the present Second Appeal.
4.1 The coordinate Bench of this Court vide an order dated 22.09.2003 was pleased to pass order whereby this Court observed that appellate Court has not belived the report at Exh.46, given by the Surveyor in view of the fact that when the said report was made, the defendant was not present and, therefore, to resolve the said issue it was ordered that fresh survey may take place and, therefore, the plaintiff was directed to apply to the District Inspector of Land Records for survey of the disputed land Page 3 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined bearing survey no.413 within 15 days from the date of the order and this Court also directed the District Inspector of Land Records on receiving such application shall cause the survey of land bearing Survey No.413 situated at Village Vaav, Tal.Satlasana, Dist.Mehsana. Further direction was also given that the Surveyor shall acurately record position of the land bearing Survey Nos.413 and 414 and shall record measurement of land bearing Survey No.413, according to the revenue records and shall findout whether any part of the said land i.e. land bearing Survey No.413 is in occupation of defendant, and if so, to indicate the extent of such occupation and location of such part occupied by the defendant. The coordinate Bench of this Court had also passed an order that the Surveyor shall take into consideration respective sale-deeds and place the report before the said coordinate Bench.
4.2 Pursuant to directions of the coordinate Bench, after receiving the letter dated 15.11.2003, the District Inspector Land Records, Mehsana has placed before this Court the said survey report and the position of the land bearing survey nos.413 and 414 passed through the map and the panchayat is also produced on record and according to new survey that has been done pursuant to the order of the coorindate Bench dated 22.09.2003 it has been observed that portion that has been mentioned in blue color belongs to the plaintiff i.e. Survey No.413 paiki and that the owner of Survey No.414 has encroached upon 0-57-32 Hec.Are.Sq mtr of land.
4.3 The present second appeal has been admitted by the order dated 29.03.2004 on the following substantial questions of law.
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"Whether the appellate Court erred in law in not relying upon the map Exh.46 prepared by the Surveyor ? "
SUBMISSION OF PLAINTIFF - APPELLANT :
5.1 Learned advocate for the plaintiff has mainly argued that there is no much difference in the survey report which has been produced vide Exh.46 and the survey report which has been produced on record in view of the order dated 22.09.2003 passed by the coordinate Bench of this Court. Moreover, the Surveyor that has been examined vide Exh.53, has categorically stated that there is an encroachment in the suit property by the occupier of Survey No.414 and the trial Court has rightly passed the decree directing the defendant to remove the said encroachment.
5.2 Learned advocate for the plaintiff has also argued that owner of the Survey Nos.413 and 414 who sold the property to the defendant and the plaintiff has been examined by the defendant vide Exh.75 and his evidence cannot be believed in view of the fact that in his cross-
examination he has categorically stated that, he has been tutored by the defendant. The fact that there is an encroachment in Survey No.414 is evident from the report produced vide Exh.46 and the survey report prepared pursuant to the order passed by this Court on 22.09.2003. Therefore, it has been argued that the first appellate Court has erred in law in not relying upon the map produced by Exh.46 prepared by the Surveyor.
5.3 Learned advocate for the plaintiff has also argued that the first appellate Court has not properly appreciated the evidence of the surveyor produced vide Exh.46 and has wrongly given weightage and considered the fact that the Surveyor has not passed examination of ITI and Surveyor Page 5 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined was formerly a Peon and he was Helper for preparing map and that he was not an Expert. It has also been argued that the first appellate Court has not taken into consideration the fact that though initially the Surveyor, who has been examined at Exh.53 joined as Peon in the government service of Surveyor Department and thereafter served as Clerk and thereafter he was promoted as Surveyor and has been working as Surveyor since last ten years before he deposed before the Court vide Exh.53.
5.4 It has also been argued by learned advocate for the plaintiff that first appellate Court has not correctly interpreted map produced vide Exhs.45 and 46 and has only taken into consideration that the Surveyor has wrongly stated in the map at Exh.46 that Survey No.414 is to the north of land bearing Survey No.413 instead has shown it on western side towards north. Moreover, from the measurement and map produced by Surveyor pursuant to the order of coordinate Bench of this Court dated 22.09.2003, it has been clearly proved that blue color portion mentioned in the said map belongs to the owner of Survey No.413 paiki i.e. plaintiff and that defendant i.e. occupier of land bearing Survey No.414 has encroached on 0-57-32 Hec.Are.Sq mtr of land. Therefore, even as per the fresh report, the same relates to the map and measurement and the report produced vide Exh.46 and in view of the said fact it has been argued that appellate Court has erred in not taking into consideration the map produced vide Exh.46. It has been therefore argued that the present Second Appeal is required to be allowed.
SUBMISSION OF DEFENDANT - RESPONDENT :
6.1 Per contra, learned advocate for the defendant has argued that this Court cannot take into consideration the measurement that has taken Page 6 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined place vide Exh.46, in view of the fact that at the time when the said measurement was done, defendant was not present and said maps have been prepared in absence of the defendant. Moreover, it has been argued that said measurement and map produced vide Exh.46 have been done before filing the suit and the same is without any order of the trial Court and therefore also the same cannot be taken into consideration.
6.2 Learned advocate for the defendant has also argued that measurement and report that have been prepared vide Exh.46 are not prepared by the Surveyor and an Expert and, therefore, same cannot be taken into consideration. It has also been argued that fresh report, measurement and map that have been prepared pursuant to the order dated 22.09.2003 also do not give the proper measurement of Survey No.414 and it is the case of the defendant the plaintiff is the owner of the land bearing Survey No.413 paiki and not the owner of entire land bearing Survey No.413 and, therefore, plaintiff has been miserably failed in proving that his property is adjacent 414 i.e. bearing land survey No.413 paiki as adjacent next to Survey No.414 and in view of the fact that land bearing Survey No.413 paiki has been sold by way of two different sale-deeds by the original owner examined at Exh.75 and it has come on record that there are two owners of Survey No.413 whereby land bearing entire Survey No.413 is admeasuring 6 Acres 36 Gunthas out of which land bearing Survey No.413 paiki admeasuring 4 Acres and 24 Gunthas have been purchased by the plaintiff and the remaining land i.e. 2 Acres and 12 Gunthas have been purchased by Chaudhari Virsang Chhelabhai. Therefore, the plaintiff has not proved that plaintiff is owner of the property adjacent to Survey No.414 and in view of the said fact Page 7 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined judgment and decree passed by the first appellate Court quashing and setting aside the judgment and decree passed by the trial Court is as per law after re-appreciating the evidence produced before the appellate Court.
6.3 Learned advocate for the defendant has relied upon judgment reported in AIR 1966 SC 644 in the case of Ram Kishore Sen and ors. vs. Union of India and unreported judgment passed by Bombay High Court in the case of Harsing Kewala Rathod vs. Ramji Hemla dated 15.12.2008 passed in Second Appeal No.314 of 1990. In view of these judgment, it has been argued that the question of admissibility of the map has to be considered in light of Section 36 of the Evidence Act and in view of the Section 83 of the Evidence Act the accuracy of the said map has to be established by the plaintiff and the plaintiff has not established the said fact, therefore, the map produced vide Exh.46 could not be taken into consideration.
ANALYSIS :
7.1 Having heard learned advocates for the parties and having considered the judgment and decree passed by the trial Court and the judgment and decree passed by the appellate Court quashing and setting aside the judgment of the trial Court, following are admitted facts :
(i) plaintiff and defendant have purchased the suit property from one Senghabhai Dhababhai Sanema;
(ii) plaintiff has purchased land bearing Survey No.413 paiki by registered sale-deed which is on the western side admeasuring 4 Acres and 24 Gunthas and if the four Page 8 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined boundaries of land bearing Survey No.414 is taken into consideration, which is produced at Exh.71, it has come on record that the defendant is owner of the entire property i.e. land bearing Survey No.414;
(iii) from the above-said boundaries stated in the sale-deed for Survey No.414 it can be clearly established there is Prajapati Karsan Dala's property i.e. plaintiff's property is situated; on the western side agricultural land of Rabari Harji, on the northern side land of Modi Tara and on the southern side land of Chamar Manek Lala is situated; and
(iv) therefore, it can be clearly established from the sale-deed that there is common boundary between the defendant's property and the property of plaintiff.
7.2 Therefore, case of the defendant is that though the plaintiff is the owner of Survey No.413 paiki, it has not been established by the plaintiff that the property i.e. land bearing Survey No.413 paiki is the same property which is next to defendant's land bearing survey no.414 and land bearing survey no.413 paiki could be property that belonged to Chaudhri Virsang Chhelabhai. However, the sale-deed of the defendant itself is very clear wherefrom it can be clearly established that plaintiff and defendant share common boundaries. If the map and report prepared by Exh.46 and report that has been produced pursuant to the order dated 22.09.2003 is taken into consideration, it has been established that occupier of land bearing Survey No.414 has encroached upon Survey No.413 though the area of encroachment in report produced vide Exh.46 is 0-63-84. Therefore, it has been proved by Surveyor report that there is Page 9 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined an encroachment by occupier of survey no.414 in survey no.413.
7.3 The first appellate Court has not relied on the said map only on the ground that the said report was prepared in absence of defendant and that the person who prepared the said report was not an expert. However, the fact remains that even after order that was passed on 22.09.2003, wherein Surveyor was appointed, the Surveyor has categorically prepared the report wherein measurement are also stated. Moreover, if the said report is perused, there is statement which has been signed by the defendant on 04.11.2003 wherein he has stated that pursuant to the order passed by this Court dated 22.09.2003 he has given authority to his son to remain present for the measurement of Survey Nos.413 and 414 and there is also statement of son of defendant who has remained present during entire measurement and the measurement of the suit property is also done as per the revenue record more particularly 7/12 abstracts of suit property bearing Survey Nos.413 and 414 and panchnama is also drawn pursuant to the said order. Therefore, considering the overall facts of the case, the first appellate Court has erred in not taking into consideration the map produced vide Exh.46 which corroborates with the map and measurement done pursuant to the order dated 22.09.2003 and the only reason for judgment and decree of the trial Court that has weighed in the mind of the first appellate Court was that the Surveyor, who had prepared the map produced vide Exh.46, was formerly Peon and he was Helper in preparing map and that he was not an expert in measurement and has not taken training and has not passed the examination of Surveyor under ITI. The fact remains that even as per the measurement pursuant to the order dated 22.09.2003, it has come on record occupier of Survey No.414 has encroached upon 0-63-84 Hec.Are. Sq mtr of land bearing Survey No.413 Page 10 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined paiki and in view of these facts, the judgment and decree passed by the first appellate Court is required to be quashed and set aside and the judgment and decree that has been passed by the trial Court is required to be upheld. However, in view of the fact that measurement of the lands produced vide Exh.46 states that encroachment is of 0-63-84 Hec.Are.Sq mtr of land and as per the report pursuant to the order dated 22.09.2003, there is encroachment of 0-57-32 Hec.Are.Sq mtr, this Court is of the firm opinion that the first appellate Court has erred in not considering the map produced vide Exh.46. In view of the said facts, the judgment and decree passed by the trial Court is confirmed with a modification with respect to the defendant who is occupier of land bearing Survey No.414 to remove his encroachment from land bearing Survey No.413 paiki to the extent of 0-57-32 sq mtr of land and after removing the said encroachment to handover the possession of that portion of the land to the plaintiff.
7.4 Insofar as judgments relied upon the learned advocate for the defendant in the case of Ram Kishore Sen and ors. vs. Union of India (supra) and in the case of Harsing Kewala Rathod vs. Ramji Hemla (supra) are concerned, it will not be applicable in the present case in view of the fact that report that has been produced vide Exh.46 and the report that has been prepared pursuant to the order of coordinate Bench of this Court dated 22.09.2003 clearly establish the fact that the defendant has encroached upon the land bearing Survey No.413 paiki i.e. 0-57-32 sq mtr of land and the fact also remains that even the sale-deed produced vide Exh.71 also clearly suggests that on the eastern side of the property, the property belonged to the plaintiff is situated and, therefore, from the Page 11 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Wed Sep 03 2025 Downloaded on : Wed Sep 03 23:36:21 IST 2025 NEUTRAL CITATION C/SA/125/2002 JUDGMENT DATED: 01/09/2025 undefined bare reading of the sale-deed it clearly establishes that property that belonging to the plaintiff i.e. land bearing Survey No.413 paiki that has been purchased by the plaintiff is adjoining to Survey No.414 and, therefore, the above referred judgment will not be helpful to the defendant in the facts of the present case.
8. Under the circumstances, the learned trial Court has rightly decided the issue between the parties in the right perspective. The appellant being able to prove his case before the learned trial Court, the present Second Appeal is allowed. In view of the said facts, the judgment and decree passed by the trial Court is confirmed with a modification with respect to the defendant who is occupier of land bearing Survey No.414 to remove his encroachment from land bearing Survey No.413 paiki to the extent of 0-57-32 sq mtr of land and after removing the said encroachment to handover the possession of that portion of the land to the plaintiff.
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