Bombay High Court
Dhansingh Lalsingh Bhopale And ... vs Kaminibai W/O Hiraman Barku ... on 13 August, 2003
Author: S Kharche
Bench: S Kharche
JUDGMENT
S.T. Kharche, J.
1.This Second Appeal arises out of the judgment and decree dated 10.02.1987 passed by the Appellate Court i.e. Additional District Judge, in Regular Civil Appeal No. 48/1982, who allowed the appeal and set aside the decree passed by the trial court dismissing the suit. The Appellate Court directed the appellant / defendant to remove the encroachment of 7 Ars., of the land denoted as A,B,C,D, in red pencil shed at Exh.33, which was a joint measurement map prepared by the cadastral surveyor, which formed as part of the decree. The Appellate Court also directed that in case the defendants did not remove the encroachment the plaintiffs would be entitled to get the possession of the encroached land by appointing Court Commissioner of the level of Cadastral Surveyor.
2.Heard Shri S.R.Deshpande, the learned Counsel for the defendants and Shri P.P.Kotwal, the learned Counsel for the plaintiffs. I have perused the judgment passed by both the Courts below. The trial Judge was of the view that there was a discrepancy in the joint measurement map regarding the portion which was shown to the extent of 9 Acres being fallow land. The trial Judge held that the plaintiff has failed to establish that the defendants have made encroachment on their land survey no. 25, and consequently he dismissed the suit. The Appellate Court had appointed a cadastral surveyor Shri Udhar, as a Commissioner under Order 26 Rule 9 of C.P.C., for taking the joint measurement of the respective lands owned by the parties. The Commissioner has submitted his report along with the map Exh.33, which was considered by the Appellate Court and recorded the finding that the defendants have made encroachment to the extent of 7 Ars of land.
3.It is not disputed that the plaintiff are the owners of the agricultural land survey no. 25 (new block no. 49) admeasuring 21 Acres 12 Gunthas, whereas the defendants are the owners of the agricultural land bearing survey no. 27 (block no.46) admeasuring 10 Acres 39 Gunthas. The joint measurement map would indicate that the defendant have made encroachment to the extent of 7 Ars. It is settled law that the report of the Commissioner appointed under Order 26 Rule 9 of C.P.C. is admissible in evidence, and therefore it cannot be said that the findings of the Appellate Court was not based on the correct appreciation of facts and law.
4.By virtue of Order XXVI Rule 9 of C.P.C., Commissioner was appointed and the map along with report drawn by the Commissioner would clearly be admissible in evidence. It is necessary to reproduce Rule 10 Order XXVI which contemplates that :
"10. Procedure of Commissioner. (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit -- The report of the Commissioner and the evidence taken by him [but not the evidence without the report shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Commissioner may be examined in person -- Where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."
5.Bare reading of this provision of law, it would reveal that the report of the Commissioner along with the map is admissible in evidence. It is not the case of the defendant that the map drawn by the Commissioner is in accurate map and that the Commissioner did not follow the procedure properly. Nothing has been brought on record in the cross examination of the Commissioner to show that the joint measurement of the respective lands taken by him shown in the map was inaccurate. In that view of the matter, I am of the considered opinion that no fault can be found with thee decree passed by the Appellate Court, and consequently the same is perfectly legal and sustainable in law.
6.The Appellate Court also considered the question of adverse possession and observed that no body was certain which part of the land was owned by them and which portion of the land was under encroachment and, therefore, the question of adverse possession will not survive. What is pertinent to note that the question of adverse possession was not raised in the trial court. No issue was framed as to whether the defendants have become the owners of the land under encroachment by adverse possession and the defendant also did not submit any application to the trial court for framing of such an issue. However, it would further reveal that since no such issue was raised in the trial, it is difficult to allow the said question to be raised in the second appeal. Thus, I do not find any substantial question of law in this appeal, and the same is dismissed. In the circumstances, there shall be no order as to cost.
