Kashinath S/O Ramkrishna Chopade vs Purushottam Tulshiram Tekade And ...
2005 Latest Caselaw 688 Bom

JUDGMENT

S.T. Kharche, J.

1. Invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, this appeal has been filed challenging the judgment and decree dated 18-7-1989 passed by the learned Additional District Judge in Regular Civil Appeal No. 92 of 1985, whereby the appeal came to be dismissed and the judgment and decree dated 18-12-1984 passed by the learned Joint Civil Judge, Jr. Dn., in Regular Civil Suit No. 31 of 1981 has been confirmed and it was declared that the plaintiffs are the owners of the suit site which is described by letters A-3, A-4, A-12, A-2 and A-3 in the suit map Ex. 32. The defendants were also directed to deliver the vacant possession of the suit site described by letters A-3, A-4, A-12, A-2 and A-3 in the suit map Ex. 32 after removing the construction from it with further direction that if the defendant fails to remove his construction over the above described suit site, the plaintiffs would be entitled to get it removed at their own costs.

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

The plaintiffs filed a suit for declaration that the suit site is owned by them and the defendants be restrained from interfering with their possession over the suit site. The plaintiffs contended that the father of plaintiff No. 1 left behind him the suit site of his ownership and possession and its size is 12 feet east west and southern side is of 12 feet of measurement. Similarly the north south eastern side is 26 feet and north south western side is 26 feet. The house and open land of the defendant is towards the eastern side of the house of the plaintiff. The plaintiffs No. 1 and 3 are the sons, the plaintiff No. 4 is the daughter and plaintiff No. 2 is the widow of deceased Tulshiram and the plaintiffs No. 1 to 4 are the owners of the abovesaid site as the heirs of Tulshiram. The walls of this house and open plot described in the suit map are there since beginning. The open land described by letters A-3, A-4, A-10, A-l, A-2, A-3 is the subject-matter of this suit. The other walls and house and the open land in front of the house of plaintiff are described in the suit map and the defendant without any right or interest encroached upon the open land of the plaintiffs shown by letters A-3, A-4, A-10 and A-2 in the map and started construction of wall on the land shown by letters A-3, A-4 and A-18. The defendant also removed 3 or 4 lays of bricks from the plaintiffs' wall described by letters A-l, A-2, A-10, A-12 in the map. The defendant was called upon to vacate the portion of the plot on which encroachment is made, but in vain. Therefore, the plaintiffs were constrained to file suit against the defendant.

3. The defendant contested the suit and contended that his father had purchased the suit site on 23-3-1945 in a constructed position and since then this land is as it is and none of its portion was open land. The defendant also contended that the portion described by letters A-3, A-4, A-12 and A-3 as mentioned in the plaint map was never an open land nor in possession of the plaintiffs. This portion was the place of tin shed of the defendant from which the tin shed is removed for new pucca construction. The defendant contended that the wall described by letters A-3 and A-2 in the plaint map is the joint wall of the plaintiffs and defendant. The ownership of the plaintiffs on the entire portion of the suit map is not admitted by the defendant. The portion shown by letters A-13, A-14, A-15, A-10 in the plaint map was never an open land. There was a tin shed of the defendant over the portion by letters A-13, A-14, A-18 which is to the north to the portion and A-13 and A-14. The portion in the plaint shown as A-3, A-2, A-l and A-10 was the kitchen in the tin shed of the defendant and that he did not make any encroachment and the suit is totally misconceived and liable to be dismissed.

4. Mr. Chandurkar, learned counsel, for the appellant contended that admittedly the plaintiffs did not have any document of title to the property and the learned Additional District Judge having discarded the oral evidence adduced, there was no evidence on the basis of which the plaintiffs could be granted a decree in respect of the property. He contended that the learned Additional District Judge took it for granted without any basis or evidence that the plaintiffs had title to the property for which assumption there is no basis whatsoever and in that view of the matter the plaintiffs should not have been granted decree by the courts below. He submitted that the learned Additional District Judge having observed that it was not necessary to go into the oral evidence of the parties and inasmuch as the oral evidence according to him would not out-weigh the sale-deed and further that the admissions given in evidence were all weak admissions and admissions must go the whole hog unlike the present case which was brought to his notice to which discussion need not be made, clearly demonstrates the total, non-application of mind on the part of the learned Additional District Judge to the controversy and that the basic question whether the property in suit as described by letters A-3, A-4, A-10 and A-2 in the plaintiffs' map could be said to have belonged to the plaintiffs, had to be decided on the basis of the evidence, oral and documentary, and inasmuch as the oral evidence as recorded has wholly been excluded by the learned Additional District Judge, that has created a patent error on the approach to the case in question which has the effect of vitiating the judgment as recorded by the learned Additional District Judge.

5. Mr. Chandurkar, learned counsel, further contended that the decree has been drawn on the basis of the map (Ex. 32) annexed with the plaint and the said map is not admissible in evidence in view of Section 83 of the Indian Evidence Act, 1872. He contended that the substantial question of law that arises in this appeal is, whether on the strength of unproved map, the decree passed by the courts below is sustainable in law. He further contended that no Commissioner was appointed for the purpose of local investigation as is required under Order 26, Rule 9 of the Code of Civil Procedure and in absence of accurate map, the judgment and decree passed by the courts below is purely on the basis of presumptions and assumptions and therefore liable to be set aside.

6. Mr. Paliwal, learned counsel, for the plaintiffs contended that the defendant had purchased the property from the co-sharer of plaintiffs by sale-deed dated 27-3-1945 (Ex. 47) and the boundaries have been described in the sale-deed. The map (Ex. 32) appended to the plaint which formed part of the decree has been prepared on the basis of the dimensions and measurements mentioned in the sale-deed and, therefore, it would clearly reveal that no substantial question of law is involved in this appeal and the same is liable to be dismissed.

7. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It would clearly reveal that the question of law that has been involved in this appeal is, whether the map Ex. 32 which formed part of the decree is admissible in evidence in view of Section 83 of the Evidence Act and whether the decree passed by the courts below on the basis of the said map can be sustained in law.

8. In this context, it is necessary to reproduce Section 83 of the Evidence Act which contemplates 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.

(emphasis supplied).

9. The analysis of the aforesaid section would show that the words employed, "but maps or plans made for the purpose of any cause must be proved to be accurate" would clearly "indicate that the maps or plans made for the purpose of any cause must be proved to be accurate and no presumption of law can be drawn that those maps or plans are accurate which are prepared at the instance of the parties for the purpose of the cause." 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 counteracted by swearing the maker to the truth 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 all over 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.

10. I may usefully refer the decision of this Court in the case of 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 amount to a refusal in 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."

11. I am in respectful agreement with the view taken by this Court in the aforementioned case. 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 peculiar 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. 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.

12. 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 if has been held in para 12 as under :

"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-l 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, 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."

13. In view of the aforesaid 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 defendant for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure not only become relevant but appears to be absolutely essential for the just decision of the case.

14. In the present case neither the City Surveyor nor-any expert has been appointed for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure and though the dimension of the property has been mentioned in the sale-deed (Ex. 47), in absence of any evidence of the person who prepared the map it is not possible to accept that the map which formed part of the decree is an accurate map and can be made basis for granting relief to the plaintiff. In fact, the impugned judgments and decree passed by the Courts below have resulted into miscarriage of justice and in such circumstances there is no alternative except to remand this suit to the trial Court with directions to appoint the Commissioner/Surveyor from the office of City Surveyor, Buldana for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure.

15. The suit is accordingly remanded to the trial Court and the trial Court is directed to appoint the Commissioner or a Surveyor from the office of City Surveyor, Buldana for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure. The plaintiff is directed to submit his application before the trial Court within two weeks from today for appointment of City Surveyor who shall conduct local investigation in accordance with the provisions of Order 26, Rule 9 of the Code of Civil Procedure and take the measurements of the property owned by the parties after taking into consideration the title-deeds of the parties and shall also demarcate the boundaries of the property by noting down the actual measurements in the joint measurement map itself by showing the precise and concise area under encroachment, if any, and then shall submit the map and report to the trial Court. In such circumstances, the appeal is allowed. The judgments and decrees passed by the Courts below are set aside and the suit is remanded to the trial Court for fresh decision in accordance with law and in the light of the observations made above. The trial Court shall decide the matter expeditiously and preferably within six months from the receipt of record and proceedings of this case. The record and proceedings be sent immediately to the trial Court. Parties are directed to remain present before the trial Court on 11-7-2005. If the plaintiff does not submit his application for appointment of the Commissioner or Surveyor within two weeks, as stated above, the suit shall stand dismissed.