Kisanlal Maniklal Rathi vs Dinkar Yashwant Patil
2003 Latest Caselaw 933 Bom

JUDGMENT

S.T. Kharche, J.

1. Invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, 1976 the original plaintiff has come up in second appeal being aggrieved by the judgment and decree passed by the first appellate Court on 19-7-1987 in Reg. Civil Appeal No. 131 of 1984 confirming the judgment and decree passed by the trial Court on 20-9-1984 in Reg. Civil Suit No. 133 of 1981 dismissing the suit of the plaintiff seeking relief of possession on the strength of title as well as on the ground that the defendant has made encroachment to the extent of 2 gunthas on the land of the former.

2. Brief facts are required to be stated as under:

The plaintiff is the owner of agricultural land bearing survey No. 75/4-A situated at Nandura, district Buldana. It is contended that the plaintiff had purchased the land of 7 gunthas from the erstwhile owner Motisingh by virtue of four different sale-deeds executed by Motisingh on 2-7-1974, 29-8-1974, 4-10-1974 and 5-2-1975. The case of the plaintiff is that the defendant has no right, title or interest in the said land owned by him and the defendant has made encroachment to the extent of 2 gunthas on the said land. Therefore, a notice dated 2-4-1976 was served on the defendant calling upon to restore the possession of 2 gunthas of land but in vain. The second notice dated 26-11-1980 was also served on the defendant but in vain. Therefore, the plaintiff was constrained to file the suit for recovery of possession on the strength of title as well as on the basis that the defendant is in possession as a consequence of encroachment to the extent of 2 gunthas of land.

3. The defendant combated the claim of the plaintiff by his written statement and denied that he has made any encroachment on the land of the plaintiff. He sets up a plea that he is in continuous possession of the said land since the year 1962 as an owner thereof. He contended in the written statement that the plaintiff did not become the owner of the suit land by virtue of the sale-deeds executed by Motisingh that all the sale-deeds were nominal and fabricated and do not confer any right on him.

4. The trial Court framed the issues, out of which following two issues are important --

1. Does the plaintiff prove that he is an owner of field S. No. 75/4-A at Nandura admeasuring 7 gunthas of land?

2. Does the plaintiff prove that the defendant committed encroachment over 2 gunthas of land belonging to him?

The findings recorded by the trial Court on the above issues are :

1. Ownership is proved to the land in Exhs. 30 to 33 but not of the suit land.

2. No.

5. The plaintiff had examined himself and the witness and relied on the documentary as well as oral evidence. As against this, the defendant did not examine himself nor he has examined any witness on his behalf. The trial Court on consideration of the documentary as well as the oral evidence on record had come to the conclusion that the plaintiff has failed to prove the ownership of the land admeasuring 2 gunthas and consequently dismissed the suit. The plaintiff had challenged in appeal the judgment and decree passed by the trial Court. The appellate Court examined the material on record and was of the view that the encroachment has not been proved and though the defendant had taken different pleas, the plaintiff is not entitled to take the advantage of the same because the plaintiff has to succeed on the strength of his own title and not on the weaknesses of the defendant's case. The appellate Court, therefore, dismissed the appeal. The concurrent findings of both the courts below have been challenged in this second appeal.

6. Heard Mr. Deshpande, learned counsel, for the appellant/plaintiff and Mr. Khapre, learned counsel for the respondent/defendant. The substantial question of law involved in this appeal is, whether the concurrent findings of both the courts below are liable to be upset on the ground that there has been an error of law apparent on the record in not construing the evidence in a proper manner.

7. Mr. Deshpande, learned counsel, for the appellant contended that there is no dispute that the plaintiff has purchased the agricultural land admeasuring 7 gunthas by virtue of four different sale-deeds from the erstwhile owner Motisingh (P.W. 2). He contended that the defendant had made encroachment on the said land in the year 1976 and constructed a hut in the 2 gunthas of land. He contended that two notices dated 2-4-1976 and 26-11-1980 were served on the defendant calling upon him to deliver the possession of the 2 gunthas of land but by his replies dated 8-5-1976 and 12-5-1980 the defendant set up a plea of oral lease as well as adverse possession and gave evasive replies by going to the extent of denying receipt of notices. He contended that the defendant did not examine himself as a witness nor he has adduced any oral evidence in support of his contention and, therefore, adverse inference has to be drawn against him. He contended that both the Courts below did not construe the evidence in proper perspective and there has been apparent error of law on record. He contended that the plea of oral lease taken in the reply dated 8-5-1976 and the plea of adverse possession taken in the reply dated 29-11-1976 is not proved by adducing any substantive evidence on record in the nature of documents and, therefore, the plaintiff is clearly entitled to recover possession of 2 gunthas of land on the strength of his title.

8. Mr. Khapre, learned counsel, for the respondent contended that the concurrent findings of both the courts below were based on the evidence adduced by the parties on record and no substantial question of law and fact is involved in this appeal and the same is liable to be dismissed. He contended that in fact the defendant had taken 2 gunthas of land on lease. Motisingh had executed a rent-note (Ex. 51) dated 3-5-1976 and it was agreed that the defendant would pay rent at the rate of Rs. 120/- per annum and actually paid the rent for the period from 15-5-1967 to 14-5-1976 and therefore the defendant, being a tenant on the said land, cannot be evicted without due process of law much less without issuing a notice under Section 106 of Transfer of Property Act, 1882 (for short the Act). Mr. Khapre further pointed out that the encroachment which is said to have been made by the defendant on two gunthas of land is part and parcel of the agricultural land purchased by the plaintiff from the erstwhile owner Motisingh. He further contended that the defendant did not set up any plea for adverse possession.

9. I have given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. At the outset, it may be stated that Motisingh (P.W. 2) was the erstwhile owner of the agricultural land bearing Survey No. 75/4-A, situated at Nandura admeasuring 15 gunthas. The plaintiff is said to have purchased 7 gunthas of land from the said survey number by virtue of four different sale-deeds (Exs. 30 to 33) dated 2-7-1974, 4-10-1974, 5-2-1975 and 29-8-1974. The first notice dated 2-4-1976 was served on the defendant by R.P.A.D. wherein it has been specifically mentioned that the defendant had committed encroachment on the land owned by him and constructed one hut and a structure and started living in it. The defendant was called upon to deliver the possession of those two gunthas of land by removal of hut standing thereon within seven days and was also asked to stop coming on the said land.

10. It is pertinent to note that the defendant replied the aforesaid notice on 8-5-1976 wherein he has taken a stand that Motisingh had granted two gunthas of land to him by virtue of oral lease and the said oral lease was also granted to him by the erstwhile owner Kannusingh Govindsingh since the year 1962-63 and by virtue of the said lease he continues to be in possession of the same.

11. Thereafter the plaintiff served the defendant with a second notice dated 26-11-1980 wherein the plaintiff reiterated that he had become the owner of the said land on the strength of his title acquired by virtue of the sale-deed executed by Motisingh and again called upon him to restore the possession of the said two gunthas of land by removing the encroachment on which temporary hut was constructed.

12. The aforesaid notice was met with the reply dated 29-12-1980 and the defendant denied the title of the plaintiff over the land on which the alleged encroachment by construction of hut was standing. The defendant specifically mentioned in para 2 as under :

"Our client owns a house standing on the said land. The said house was constructed in the month of June 1962 upon 2 gunthas of land and since then the said land is in continuous and uninterrupted possession of our client as an owner. That land was given to our client by Kannusingh Govindsingh Rajput and since 18 years our client is in possession of the same as an owner and, therefore, he has perfected his title over the said land."

13. Bare reading of the aforesaid contents of the reply given by the defendant would reveal that in the first reply he has taken a plea that 2 gunthas of land was granted to him as an oral lease since the year 1962 by the erstwhile owner. It is obvious that oral lease cannot be recognized in law. Section 105 of Transfer of Property Act, 1882 (for short the T. P. Act) defines lease as under:

"A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."

Section 107 of the T. P. Act lays down as under:

"A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

[All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

[Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:]

Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than lease from year to year or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]

14. In the present case, admittedly the lease-deed was not reduced into writing in the year 1962 by the erstwhile owner Kannusingh Rajput. The lease-deed in the form of rent-note is said to have been executed on 3-5-1976 by Motisingh wherein it is stated that the rent is fixed at the rate of Rs. 120/- per annum and the suit land was already granted on lease to the defendant for the period from 15-5-1967 to 14-5-1976 and the lease continued. This lease-deed is not registered.

15. It is pertinent to note that the land was sold by Motisingh by virtue of four different sale-deeds and there is absolutely no material on record from which it could be said that this rent-note dated 3-5-1976 was pertaining to any other land which was not the subject matter of the sale-deeds dated 2-7-1974, 29-8-1974, 4-10-1974 and 5-2-1975. If the suit land was the subject matter of the sale in those years then Motisingh would have no right, title or interest in the land to execute the rent note dated 3-5-1976.

16. The defendant has changed his stand in the second reply dated 29-12-1980 and has come up with a case that he has become owner of the said land by virtue of adverse possession because he is in continuous and uninterrupted possession of the said land since more than 18 years. It appears that the defendant has given up such plea and, therefore, no issue was framed by the Courts below. Fact remains that the defendant did not examine himself as a witness nor he has adduced any evidence in support of his contention that he has taken two gunthas of land from Kannusingh on lease and thereafter from Motisingh by virtue of rent note dated 3-5-1976 and adverse inference is required to be drawn against him.

17. Reference may be had to the decision of Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh wherein it has been observed as under:

"It is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to cross-examination. Non appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case."

18. I may also usefully refer the decision of Supreme Court in the case of Gopal Krishnaji Ketkar v. Mohammed Haji Latif wherein the ratio has been laid down that even if the burden of proof does not lie on the party the Court may draw adverse inference if it withholds important documents in his possession and which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

19. The ratio laid down by the Privy Council has also been followed by this Court in Nathuji Narayanrao Udapure v. Narendra Vasanjibhai Thakkar, 1981 Mh.L.J. 446 and it has been observed that this question has been considered by the Privy Council in the case of Gurbaksh Singh v. Gurdial Singh. The relevant head-note is as follows:

"It is the bounden duty of a party, personally knowing the whole circumstance of the case, to give evidence on his own behalf and to submit to cross examination. His non appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case."

This Court has also taken a similar view in the case of Pirgonda v. Vishwanath, AIR 1956 Born. 251. The following is the material headnote :

"Normally a party to the suit is expected to step into the witness box in support of his own case and if a party does not appear in the witness box, it would be open to the trial Court to draw an inference against him. If a party fails to appear in the witness box, it should normally not be open to his opponent to compel his presence by the issue of a witness summons.."

Generally speaking there is a good deal to be stated in the contentions that the suit should succeed on the ground that the defendant had not cared to enter the witness-box and testified as to the truth of his case. The party who does not enter the witness-box runs a great risk of presumption being drawn against him. In the case of a party on whom burden of proving certain issues lies runs the risk by withholding from entering into the witness-box. However, presumption under Section 114 of the Indian Evidence Act, 1872 is rebuttable, but the section makes it obligatory on the Court to act on such presumptions. Therefore, it is clear that when a party abstains himself from giving substantial evidence, adverse inference can be drawn against it. In the present case, the defendant did not care to enter the witness box in order to prove that the land admeasuring 2 gunthas was allotted to him by oral lease or that he has become owner of that part of the land by adverse possession.

20. The appellate Court in para 9 of its judgment observed as under:

"It is no doubt true that the defendant took changing stand in respect of his possession over the suit land, as firstly he stated that he took the suit land on rent from Motisingh and then asserted his own title to it by stating he purchased in from its erstwhile owner, but to my mind, this fact does not help the plaintiff in establishing his claim because it is well settled that the plaintiff can succeed on the strength of his own title and not on the weakness of defendants case."

21. On examination of the material evidence brought on record, it would reveal that the defendant himself did not come with any specific case as to how he has constructed a hut on the 2 gunthas of land and how it was not the part and parcel of the land purchased by the plaintiff by virtue of aforesaid four different sale-deeds. Therefore, I am of the considered view that both the courts below have misconstrued the evidence adduced on record, In fact, it was not at all necessary to prove the encroachment when the plaintiff has brought the suit for possession on strength of his title and to my mind, the title of the plaintiff has been clearly established through his evidence as well as the documentary evidence in the nature of four sale-deeds which have been proved through the vendor Motisingh and whatever the plaintiff and Motisingh have stated on oath has to be accepted as the defendant did not step into the witness-box and adverse inference has to be drawn against him under Section 114(g) of the Evidence Act. When he has taken the plea in Ex. 40, a reply, that he became owner by adverse possession, it follows that he did not make any attempt to substantiate that plea by adducing evidence and in such peculiar circumstances encroachment has been proved through the evidence of plaintiff and his vendor Motisingh.

22. It is true that the plaintiff has to stand on his own legs and he cannot take the advantage of weakness in the defendant's case. But the defendant did not examine himself and therefore adverse inference has to be drawn specially when he did not prove that he had taken the land of 2 gunthas on lease either from Kannusingh or from Motisingh. In fact, the rent-note (Ex. 51) dated 3-5-1976 has not been proved and, therefore, notice under Section 106 of T. P. Act was not necessary.

23. Ex. 41 is the map drawn by the plaintiff himself with his signature filed with the amendment application on 22-10-1982 wherein the encroachment has been shown by the letters E, D, Da, Dha. This map is not admissible in evidence under Section 83 of Evidence Act to show that it is an accurate map. Section 83 of the Indian Evidence Act, 1872 lays down that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate.

24. Bare reading of the aforesaid provision would reveal that the maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a map is accurate lies on the party who produced it. The maps must be proved by the person who has prepared them. They are post litem motesa and lack necessary trustworthiness. Where the maps are made for the purpose of a suit there is, even apart from fraud which may exist, a tendency to colour, exaggerate and favour which can only be countenanced by swearing the maker to the trust of his plan. Hence, there is no presumption of accuracy in respect of the map or plan which is made for a particular cause and it goes without saying that a map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. In any case, in which there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and/or subsequent reference in the pleadings or judgment to place the mark on a map should be referred to this map which must be attached to the decree and signed by the Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case over all again. The map should be drawn with the North at the top and letters marking points should not be put in side ways or upside down.

25. I may usefully refer the decision of our High Court in Civil Revision No. 406 of 1952 decided on 28-1-1953 by Justice B.K. Choudhari (as he then was) in Krishnarao v. Mahadeorao, 1953 N.L.J. Note 230 at page 72 wherein it has been observed as under:

"3. The trial Court rejected the application stating that the question of encroachment by the defendant on a particular date is to be proved by positive evidence by the plaintiff and, therefore, it did not think it desirable to appoint a commissioner. It is against this order that the plaintiff has come up in revision.

4. Order 26, Rule 9, of the Civil Procedure Code is as follows: "In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court."

5. Under the above rule, the Court has a discretion to order local investigation or not. The object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. Cases of boundary disputes and disputes about the identity of lands are instances when a Court should order a local investigation under this rule. [Po Gyi v. Maung Paw and Anr., 12 I.C. 347]."

6. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the exact area encroached upon. Oral evidence cannot conclusively prove such an issue. The order of the lower Court refusing to appoint a commissioner amounted to a refusal to exercise jurisdiction. It is set aside. The plaintiffs application under Order 26, Rule 9, of the Civil Procedure Code, for appointment of Commissioner is allowed."

In view of the above, it is clear that under Order 26, Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation or not. The object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its pecuniary nature can only be had on the spot. The cases of boundary dispute and disputes about the identity of lands are instances, when a Court should order a local investigation under Order 26, Rule 9 of the Code of Civil Procedure. 12 I.C. 347 Foll. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue.

26. However, reference may also be had to the decision of the Supreme Court in the case of Ram Kishore Sen and Ors. v. Union of India, wherein it has been held in para 12 that, "it is true that Section 83 of the Evidence Act provides that the. Court shall presume that the maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate, but the maps or plans made for the purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of the maps which satisfy the requirements prescribed by the first part of Section 83. Exh. A-1 obviously does not fall under the category of the said map and so there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr. Mukherjee has given us no satisfactory reasons for differing from the said conclusion."

27. Reference may also be had to the decision in E, Achuthan Nair v. P. Narayanan Nair and Anr. wherein it was held, "In India, the question whether a suit is cognizable by a Civil Court is to be decided with reference to Section 9 of the Civil Procedure Code. If the suit is of a civil nature, the Court will have jurisdiction to try the suit unless it is either expressly or impliedly barred. A dispute regarding identification of boundary between two adjacent land owners is certain a dispute of a civil nature and it is not barred either expressly or impliedly. The Courts in India will not be justified in importing the technicalities of English law and the distinction made by the English Courts between legal estates and equitable estates. The report submitted by the Commissioner appointed by the trial Court to locate the boundary in the manner indicated in the agreement between the parties was rightly accepted by the High Court. The decree passed by the High Court in terms of the prayer made by the plaintiff-respondent has to be confirmed." The Court further observed that "disputes as regard the location of boundary separating adjacent lands of different owners may arise under ever so many circumstances. One common instance is where portions of survey field are transferred or allotted to different persons without mentioning either the side measurements or other necessary measurements to fix the geometrical shape of the plot at the spot. The area and location alone may have been shown in the transfer deed or the partition deed. Without changing the location, the area conveyed or allotted may be sought to be located in one or more alternative geometrical shape by one owner. Again, any one party may wish to have the limits of the area belonging to him demarcated so that he may either enclose the area to prevent trespass or to exercise acts of possession without encroaching into the neighbouring plot. If the other party on demand does not co-operate, a cause of action arises to have the limits of his property determined through court. Again the property conveyed or allotted may have been described only with reference to neighbouring properties. Those properties may or may not have been limited in extent and shape to a survey field. In that case, a fixation of the boundary of those properties may be necessary to fix the boundaries of the properties conveyed or allotted. If there is no cooperation in doing that, that may result in a dispute. These instances are only illustrative and not exhaustive. All these disputes are disputes of a civil nature and they can form the subject matter of a suit under Section 9 Civil Procedure Code. There is no express or implied bar under any other law. According to me, whenever there is a dispute between two parties as regards the location of a boundary separating their neighbouring properties and if on a demand to co-operate in fixing that boundary it is not given, a suit will lie at the instance of the demanding party. So I agree with my learned brother that the decision in Kayappan v. Yagappan, 1958 Ker LT 955 is not correct and has to be overruled,"

28. In view of this legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and the defendant for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure becomes relevant, In the present case, I am of the considered view that the defendant has made encroachment on the land of the plaintiff and since the matter is pretty old, I am not inclined to sent it back to the trial Court for de novo trial for taking measurements etc. The interest of justice would be served by directing the defendant to deliver the possession and the trial Court shall appoint the Commissioner, i.e. City/Cadastral Surveyor at the costs of the plaintiff for taking measurements, who shall submit his measurement report along with the map within three months after taking into consideration the area and boundaries mentioned in the four sale-deeds produced by the plaintiff. The Commissioner shall also show the exact precise and concise area under encroachment by measuring the entire survey No. 75/4-A and then submit the map and the report to the trial Court which shall form part of the decree.

29. In view of the above legal position, it is clear that both the Courts below have committed apparent error of law which has resulted into miscarriage of justice and hence this Court, in the interest of justice, is required to interfere into the same. Therefore, the judgments and decrees passed by both the Courts below are set aside and the defendant is directed to deliver possession of the land to the plaintiff under encroachment, which would be shown by the Commissioner in the map and the measurement report by taking the measurement of the property, within a month with future enquiry into the mesne profits. Appeal is allowed. In the circumstances, there shall be no order as to costs.