Ushabai W/O Sharadchandra ... vs Wasudeo S/O Baliramji Mehare And ...
2003 Latest Caselaw 1259 Bom

JUDGMENT

S.T. Kharche, J.

1. Heard finally and disposed of at the admission stage itself.

This appeal is directed against the judgment and decree dated 27-4-2000 passed by the Joint District Judge, Akola, in Reg. Civil Appeal No, 14 of 1998 arising out of the judgment and decree dated 15-12-1997 passed by the Civil Judge, Jr. Dn., Murtizapur in Regular Civil Suit No. 73 of 1996.

2. The learned counsel for the appellant contended that the agricultural land bearing Survey No. 46, admeasuring 2 hectares 41 Ares, is owned by the appellant/plaintiff. The respondent No. 1 is the father of respondents/defendants 2 to 4 and they are the owners of agricultural land bearing Survey No. 26/3. Defendant No. 1 is the Manager of the Joint Hindu Family and they are cultivating their land. He contended that the plaintiff had filed suit for removal of the encroachment and recovery of possession. He contended that the trial Court on consideration of the evidence adduced by the parties dismissed the suit and appeal was carried to the District Court. The appellate Court dismissed the appeal and hence the plaintiff has filed this second appeal challenging the findings of both the Courts below.

3. The learned counsel for the appellant contended that admittedly there was no joint measurements of the fields owned by the parties through the cadastral surveyor and, therefore, the matter deserves to be remanded to the trial Court for fresh decision in accordance with law after making appointment for Commissioner.

4. It is not in dispute that the plaintiff is the owner of agricultural land bearing Survey No. 46 and the defendants are the owners of agricultural land bearing Survey No. 46/3 which is on the South-East side from the plaintiff's land. The learned counsel for the plaintiff contended that the plaintiff is ready to bear the expenses of the measurements. Therefore, this Court is of the considered opinion that this is a fit case which deserves to be remanded to the trial Court for fresh decision according to law.

5. 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 Govt. or any State Govt. were so made and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate.

6. 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.

7. I may usefully refer the decision of our High Court in the case of Krishnarao v. Mahadeorao 1953 NLJ Note 230 at page 72 wherein it has been observed that under Order XXVI, 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 disputes and disputes about the identity of lands are instances, when a Court should order a local investigation under Order XXVI, 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.

8. 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 Govt. or any State Govt. 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."

9. In view of this legal position, it appears to be absolutely necessary that the Cadastral Surveyor ought to have been appointed by the trial Court for taking joint measurements of the properties owned by the respective parties. In the result, the impugned judgment is set aside and the appeal is allowed. The suit is remitted to the trial Court for fresh decision in accordance with law. The trial Court is directed to take into consideration the following directions in the matter :

(i) The trial Court shall appoint T.I.L.R./D.I.R. as a Commissioner under Order XXVI, Rule 9 of the Code of Civil Procedure, 1976. (ii) The Commissioner shall take the joint measurements of the lands owned by the parties in presence of the parties and their local counsel. He shall prepare the authentic measurement map showing therein the boundaries of both the lands along with the measurements in the map itself.

(iii) The Commissioner shall also prepare his report and file it on the record of the case and thereafter the trial Court would give opportunity to the parties to lead evidence and on considering the evidence as well as the report of the Commissioner, shall decide the suit afresh in accordance with law.

(iv)    Since the matter pertains to the year 1996, it is expected that the trial Court would decide the suit within six months from the date of receipt of this judgment. No costs in the circumstances of the case.