Prakash S/O Harising Bhadoriya ... vs Dada S/O Jago Chahande
2004 Latest Caselaw 506 Bom

JUDGMENT

S.T. Kharche, J.

1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the unsuccessful original plaintiffs have filed this second appeal being aggrieved by the judgment dated 5-9-1989 passed by the Additional District Judge in Regular Civil Appeal No. 393 of 1994, whereby the appeal came to be allowed and the judgment and decree dated 19-12-1983 passed by the trial Court granting decree for possession of the portion of the land marked by letters A B C D and Y R L V in the map annexed with the plaint and directing the defendants to remove their huts from the land, has been set aside and the suit is dismissed.

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

The appellants/plaintiffs filed suit for possession of the land on the contentions that the father of plaintiff No. 1 and the husband of plaintiff No. 2 owned ancestral house and open land shown in the map at village Daini. Harising, the father of plaintiff No. 1, died in the year 1977 and after his death the plaintiffs became the owners of the house described in the map and the defendants have no right, title or interest in the said open land. Both the defendants in the month of May, 1979 committed encroachment on their land and constructed the huts forcibly and, therefore, the plaintiffs filed suit for possession and mandatory injunction. The defendants resisted the claim of the plaintiffs by filing their written statement and contended that the suit land was allotted to them by the Gram Panchayat and they did not make any encroachment on the suit land and the suit is liable to be dismissed. On the aforesaid pleadings, the trial Court framed the issues and thereafter the parties adduced the evidence in support of their contentions. The trial Court on considering the oral as well as documentary evidence recorded the finding that the defendants have made encroachment on the suit land. Consistent with this finding the trial Court granted the decree for possession and consequent relief of mandatory injunction by directing the defendants to remove the huts constructed by them on the plaintiffs' land. Being aggrieved by this judgment and decree passed by the trial Court, the defendants carried appeal to the District Court. The learned Additional District Judge on hearing the learned counsel for the parties allowed the appeal and set aside the judgment and decree passed by the trial Court. This judgment of the appellate Court is under challenge in this appeal.

3. Mr. Dubey, learned counsel for the plaintiffs, contended that the appellate Court has committed an error in relying on the provision of Section 6 of the Specific Relief Act, 1963. He contended that the plaintiffs witness as a Sarpanch of the Gram Panchayat has proved the payment of taxes by the plaintiffs and the tax receipts Exs. 24, 33 and 34 were also duly proved. He contended that the plaintiffs' possession over the suit land for the last 50 years has been proved and the defendants are the trespassers. He contended that the finding of the appellate Court that the suit has not been brought within the period of six months from the date of dispossession and, therefore, it is barred by the period of limitation in view of Section 6(2)(a) of the Specific Relief Act, is totally erroneous and cannot be sustained in law. He contended that the suit for promissory title must be distinguished from a suit filed under Section 6 of the Specific Relief Act within six months of dispossession. The latter type of suit cannot be resisted on the ground of title so that the suit can be maintained even against the true owner if he has dispossessed him otherwise then in due course of law. A suit on possessory title, on the other hand, can be filed within 12 years of dispossession under Article 64 of the Limitation Act and the plaintiff can maintain it against any person who has no better title. In support of these submissions, he relied on the decision of this Court in the case of Mariumbi Aslam Khan v. Vithoba Yeshwanta, 1970 MH.LJ. 355.

4. None present for the respondent/defendant though duly served.

5. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the plaintiffs and is of the considered opinion that without going into the merits of the case, this case deserves to be remitted to the trial Court because the plaintiffs themselves do not know as to what is the size of their property including the house and the land. The plaintiffs have examined the witness only to show that they have paid the Gram Panchayat taxes by production of tax receipts issued by the Gram Panchayat. It is settled law that the receipts are issued regarding payment of taxes as a matter of fiscal policy of the Gram Panchayat. What is pertinent to note is that even in the tax receipts no size of the property is mentioned. The plaintiffs relied on the map annexed with the plaint. Perusal of this map would reveal that the map has not been signed by anybody nor the said map is proved to be an accurate one as is required under Section 83 of the Indian Evidence Act, 1872. It is also equally significant to note that the measurements of the property owned by the plaintiffs were also not carried out through the cadestal or city surveyor and the parties also did not apply before the trial Court for appointment of Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, i.e. the cadestal surveyor or the City Surveyor for taking the measurements of the property.

6. Section 83 of Evidence Act 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 far the purpose of any cause must be proved to be accurate.

7. 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 making points should not be put inside ways or upside down.

8. In such circumstances, there is no alternative except to remand the matter to the trial Court for appointment of the Commissioner for taking the measurements of the suit property. The impugned judgment of the Appellate Court is set aside and the trial Court is directed to appoint Commissioner for taking measurements. The Cadestal Surveyor or City Surveyor shall prepare the map by mentioning therein the actual measurements and the size of the property owned by the plaintiffs and the encroachment, if any. The Surveyor shall also demarcate the boundaries of the property owned by the plaintiffs, then shall prepare a written report and thereafter shall produce it before the trial Court along with the authenticated map. The plaintiffs shall make an application before the trial Court for appointment of the Commissioner within a period of six weeks from today and in case of failure to do so, the suit shall stand dismissed. The matter is accordingly remitted to the trial Court for decision in the light of the observations made above in this judgment and in accordance with law. The trial Court is directed to decide the matter afresh expeditiously, preferably within six months from the date of receipt of the record and proceedings of this case. The record and proceedings be sent back to the trial Court immediately, without any delay. Plaintiffs are directed to appear before the trial Court on 11th of June, 2004.