Bombay High Court
Malhar vs Shivaji on 17 October, 2013
Bench: K.K. Tated
1 wp7094.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7094 OF 2013
1. Malhar s/o Ganpat Bokephod,
Age: 48 years, Occ: Agri.,
R/o. Kada, Taluka Ashti,
District Beed.
2. Harischandra s/o Ganpat Bokephod,
Age: 45 years, Occ: Agri.,
R/o. Kada, Taluka Ashti,
District Beed.
3. Raju s/o Ganpat Bokephod,
Age: 42 years, Occ: Agri.,
R/o. Kada, Taluka Ashti,
District Beed. ...PETITIONERS
VERSUS
Shivaji s/o Vishwanath Pawal,
Age: 35 years, Occ: Agri.,
R/o. Kada, Taluka Ashti,
District Beed. ...RESPONDENT
...
Mr. Anand P. Bhandari, Advocate for petitioners.
Mr. C.R. Deshpande, Advocate for respondent sole.
...
CORAM: K.K. TATED, J.
DATE : 17TH OCTOBER, 2013
ORAL JUDGMENT :
. Heard learned Counsel for the parties.
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2. Rule.
3. Rule made returnable forthwith.
4. By consent of both the parties, matter is
taken on board for final disposal at the stage of
admission.
5. By this writ petition under Article 227
of the Constitution of India, the petitioners -
original defendants challenge the order dated 26th
August, 2013 passed by the Civil Judge, Junior
Division, Ashti below Exhibit-42 appointing a
Court Commissioner to measure land bearing Survey
No. 220 from western side 7 acres of land.
6. Few facts are as under :-
. Respondent - original plaintiff filed
Regular Civil Suit No. 387 of 2012 in the Court of
the Civil Judge, Junior Division, Ashti for
injunction restraining the respondent from
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disturbing his possession in respect of the suit
property i.e. 1 Hector 18 Are from Survey No. 220
as described in paragraph-1 of the plaint. In that
suit, respondent preferred application below
Exhibit-42 dated 25th April, 2013 for appointment
of Court Commissioner to measure the suit land. In
that application, respondent admitted that his
predecessor sold 7 acres of land to the
petitioners' father by sale deed dated 19th
January, 1968 (Exhibit-C Page-22 in the present
petition). In that application, the petitioners
filed their say dated 4th July, 2013 and opposed
the said application on the ground that the
respondent has not filed suit for removal of
encroachment, application is not tenable in law
and on other grounds. Considering the application
filed by the respondent and reply filed by the
petitioners, the trial Court has passed impugned
order dated 26th August, 2013.
7. Mr. A.P. Bhandari, learned Counsel
appearing on behalf of the petitioners submits
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that impugned order dated 26th August, 2013 passed
by the trial Court is against justice, equity and
good conscience and same is liable to be set
aside. He states that trial Court ought to have
considered that suit filed by the respondent is
for injunction. The respondent has to establish
his alleged possession over the suit property. In
such circumstances, there cannot be any question
of encroachment of land. He further states that at
the time of passing impugned order dated 26th
August, 2013 trial Court has not given any reason
for appointment of Court Commissioner to measure
the suit property and that also from western side.
In support of his contention, he relies on
judgment of this Court in the case of Syed
Mushtaque Ahmad Syed Ismail and others vs. Syed
Ashique Ali Khan Haidar Ali reported in 2012(2)
Bom.C.R. 790. On the basis of these submission,
learned Counsel for the petitioners state that the
impugned order passed by the trial Court dated 26 th
August, 2013 is required to be set aside.
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8. On the other hand, Mr. C.R. Deshpande,
learned Counsel appearing on behalf of respondent
sole - original plaintiff vehemently opposed the
present writ petition. He states that the
petitioners have not shown any ground to set aside
impugned order passed by the trial Court. He
states that to dissolve the dispute about area,
the trial Court has rightly passed impugned order
appointing Court Commissioner to measure land
Survey No. 220. He further makes a statement that,
the respondent - original plaintiff has no
objection if measurement is carried out taking
into consideration sale deed dated 19th January,
1968 executed by respondent's predecessor in
favour of the petitioners' father. On the basis of
this submission, learned Counsel for the
respondent state that, writ petition is required
to be dismissed with costs.
9. I have heard both the sides at length. I
have perused copy of plaint in R.C.S. No. 387 of
2012, application below Exhibit-42 dated 25th
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April, 2013 filed by the respondent for
appointment of Court Commissioner, reply filed by
the petitioners dated 4th July, 2013 and impugned
order dated 26th August, 2013. It is to be noted
that, in the present proceedings under Article 227
of the Constitution of India, the petitioners have
challenged the order passed by the trial Court for
appointment of Court Commissioner. Respondent -
original plaintiff filed suit for injunction
restraining the petitioners from disturbing his
possession in respect of the suit property as
described in paragraph-1 of the plaint. The
respondent - original plaintiff in the plaint as
well as in application below Exhibit-42 admitted
that, his predecessor has sold 7 acres of land to
the petitioners' father by sale deed dated 19th
January,1968. That shows that, the respondent is
not disputing area in possession of the
petitioners as per sale deed dated 19th January,
1968.
10. Considering the above mentioned facts and
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statement made by learned Counsel for respondent,
that the respondent has no objection if the order
passed by the trial Court is modified to the
extent that measurement to be carried out by the
Court Commissioner taking into consideration sale
deed dated 19th January, 1968.
11. I do not find any substance in the
present writ petition. It is settled position of
law that under Order 26, Rule 9 of the Code of
Civil Procedure, the Court has discretion to order
local investigation. 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 identity of lands are instances
when a Court should order local investigation
under Order 26, Rule 9 of the Code. The disputes
regarding the boundaries can be best adjudicated
by taking the assistance of the experts such as
the T.I.L.R., who on measurement can express his
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opinion. The Apex Court in a case of Haryana Wakf
Board vs. Shanti Sarup and others reported in
2008(8) S.C.C. 671 and the learned Single Judge of
this Court in a case of Kolhapuri Bandu Lakade vs.
Yellappa Chinappa Lakade (since deceased) through
L.Rs. Pooja @ Poojari Y. Lakade and others
reported in 2011(3) Bom.C.R. 807 have held that in
case regarding boundaries and area, an expert
person can be appointed as a Commissioner for
measurement of the properties. In the present
case, the plaintiff has prayed for appointment of
Commissioner to measure the property which has
been allowed.
12. Authority cited by the petitioners of
this Court in the case of Syed Mushtaque Ahmad
Syed Ismail and others (supra) is not applicable
to the facts and circumstances of the present case
because in that matter, appointment of Court
Commissioner was made for measurement of area as
well as construction carried out by the parties.
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13. Hence, writ petition is dismissed with a
clarification that, Court Commissioner to carry
out measurement as per order dated 26th August,
2013 passed by the Civil Judge, Junior Division,
Ashti below Exhibit-42 taking into consideration
sale deed dated 19th January, 1968 in stead of
doing only from western side.
14.
Rule discharged.
sd/-
[ K.K. TATED, J .]
sut/Oct13
