Bombay High Court
Shri. Dattatraya Namdev Kalake vs Bapu Bhairu Bhivungade And Ors on 3 December, 2014
Bench: R.M. Savant
WP-3643-14-(914)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3643 OF 2014
Dattatray Namdev Kalake )
Age-53 years, Occ. Agriculturist )
R/at, Madyal, Tal - Kagal, Dist Kolhapur )
Vs.
1 Bapu Bhairu Bhivungade )
Age-79 years, Occ. Agriculturist
ig )
R/at, Madyal, Tal - Kagal, Dist Kolhapur )
2 Ganpati Krishna Bhivungade )
Age-49 years, Occ. Agriculturist )
R/at, Madyal, Tal - Kagal, Dist Kolhapur )
3 Maruti Krishna Bhivungade )
Age-46 years, Occ. Agriculturist )
R/at, Madyal, Tal - Kagal, Dist Kolhapur )
4 Nivrutti Kirshna Bhivungade )
Age-53 years, Occ. Agriculturist )
R/at behind Panchaganga, )
Sugar factory Road, Dhangar Mala, )
Korochi, Tal Hatkangale Dist Kolhapur )
5 Jotiba Krishna Bhivungade )
Age-41 years, Occ. Agriculturist )
R/at behind Panchaganga, )
Sugar factory Road, Shivaji Corner )
Sathe Nagar, Kabnoor, )
Tal Hatkangale Dist Kolhapur )
6 Dhanaji Namdev Kalake )
Age-49 years, Occ. Agriculturist )
R/at, Madyal, Tal - Kagal, Dist Kolhapur ) ..Respondents
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WP-3643-14-(914)
Mr. G. S. Godbole i/b Mr. Sumit Kothari for the Petitioner
Mr. Saurabh Kurade for the Respondent Nos.1 to 5
Mr. Parag Tilak for the Respondent No.6
CORAM : R. M. SAVANT, J.
DATE : 3rd DECEMBER, 2014
ORAL JUDGMENT
1 Rule. With the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
The short question which arises in the above Petition is whether a
Court Commissioner is required to be appointed in the Suit in question.
3 The Petitioner herein is the original Plaintiff who has filed the Suit
in question being Regular Civil Suit No.222 of 2012 for an injunction
restraining the Defendant Nos.1 to 5 from disturbing the Plaintiff's possession
and further for restraining the Defendants from cutting the 100 years old trees
belonging to the Plaintiffs without permission as also injuncting the Defendant
Nos.1 to 5 from erasing the boundary marks between Gat Nos.1464 and 1465
which are two lands in contention in the said Suit. The Plaintiff is concerned
with land bearing Gat No.1465 and whereas the Defendants are concerned
with land bearing Gat No.1464. The said lands adjoin to each other in as much
as to the south of Gat No.1465 is the land bearing Gat No.1464 and therefore
the Defendants land bearing Gat No.1465 is to the North of Gat No.1464. In
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the said Suit, an application for temporary injunction came to be filed by the
Plaintiff and the temporary injunction sought was on the same lines as the
perpetual injunction which was sought in the Suit namely that the Defendants
should be restrained from cutting the 100 year old trees which are of the
Plaintiff, without permission. In support of the respective assertions the parties
had produced 7/12 extracts of the said Gat numbers as also two measurement
maps which were prepared at the behest of the parties i.e. the Plaintiff and the
Defendants. In so far as the Plaintiff is concerned, he produced the
measurement map dated 26/27th May 2001 whereas the Defendants produced
the measurement map dated 25th March 2009. However, in the said
measurement maps, the trees which the Plaintiff claims are over 100 years old
and are on his land, have not been shown. The Plaintiff had also produced
photographs of his land bearing Gat No.1465 in which photographs the
existence of the trees apears. The Trial Court considered the said application
Exhibit 5 and after referring to the said material on record has observed that
the existence of the trees cannot be denied however, whether the trees are in
the land of the Plaintiff or the Defendants, some clarity in that respect is
required. The Trial Court accordingly rejected the application for temporary
injunction filed by the Plaintiff by its order dated 6-11-2012.
4 Aggrieved by the said order dated 6-11-2012 the Plaintiff carried
the matter in Appeal by filing Misc Civil Appeal No.251 of 2012. In the said
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Appeal, an order of status-quo has been passed on 2-1-2013 and the Learned
Counsel for the parties are ad-idem that the said Appeal is as yet pending. It is
pending the said Appeal that the instant application Exhibit 42 came to be filed
by the Plaintiff for appointment of the Court Commissioner invoking Order
XXVI Rule 9 of the Civil Procedure Code. The appointment of the Court
Commissioner was sought in view of the stand taken by the Defendants in their
Written Statement and especially in paragraph 6 thereof it was the case of the
Plaintiff that having regard to the pleadings in the Suit and having regard to
the nature of the relief sought in the Suit, the appointment of the Court
Commissioner was necessitated. The Trial Court considered the said
application Exhibit 42 and has by the impugned order dated 13-3-2014
rejected the same. The Trial Court was of the view that the Plaintiff is claiming
ownership of the trees as also the Defendants are claiming ownership of trees
on the North side of the land owned by them i.e. Gat No.1464 and therefore
the Plaintiff has to prove his case by independent evidence and therefore the
appointment of the Court Commissioner was not warranted. The Trial Court
further observed that the appointment of the Court Commissioner was not
necessitated in view of the fact that already twice earlier the Court
Commissioner was appointed and the measurement maps are part of the
record which can be considered for determination of dispute with respect to
the property and boundaries described therein. The Trial Court has accordingly
rejected the application Exhibit 42 by the impugned order dated 13-3-2014.
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5 Heard the Learned Counsel for the parties. The Learned Counsel
for the parties reiterate the submissions which were urged on behalf of the
parties in the Trial Court i.e. the submissions for and against the appointment
of the Court Commissioner. Whereas the Learned Counsel appearing for the
Petitioner would contend that in view of the findings recorded at the stage of
consideration of the application Exhibit 5 and having regard to the two
measurement maps which are on record, the appointment of the Court
Commissioner is warranted. The Learned Counsel would further contend that
the Trial Court has erred in observing that the Court Commissioner has already
been appointed twice earlier, which observation according to the Learned
Counsel is factually incorrect.
6 Per contra the Learned Counsel appearing for the Respondent
Nos.1 to 5 would support the impugned order. The Learned Counsel would
contend that since the Plaintiff and the Defendants have placed the
measurement maps which they have got prepared on record, the appointment
of the Court Commissioner is not warranted. The Learned Counsel would seek
to place reliance on the letter dated 28-3-2012 which has been addressed by
the Deputy Superintendent of Land Records, Kagal to the Defendant No.1
Bapu Bhairy Bhiugande, wherein he has referred to the measurement of Gat
No.1465 and has informed the Defendant No.1 that if he has any objection, he
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may take appropriate steps. It is based on the said letter dated 28-3-2012 the
submissions of the Learned Counsel for the Respondent Nos.1 to 5 that the
appointment of the Court Commissioner is not necessitate.
7 Having heard the Learned Counsel for the parties I have
considered the rival contentions. It is well settled that the powers under Order
XXVI Rule 9 of the Civil Procedure Code can be invoked for appointment of the
Court Commissioner to elucidate the matter in controversy. In the instant case
the controversy is as regards the 100 year old trees which the Plaintiff alleges
are in his property, which he apprehends that the Defendant Nos.1 to 5 would
cut without permission. The principal relief sought in the Suit is an injunction
restraining the Defendant Nos. 1 to 5 from cutting the 100 year old trees. The
Trial Court at the stage of considering the application Exhibit 5 though has
come to a conclusion that the existence of the trees cannot be denied, observed
that there has to be some clarity as to in whose agricultural land the trees are
existing, whether they are on the land of the Plaintiff or the Defendant Nos.1
to 5. It is on the said basis that the application for temporary injunction filed by
the Plaintiff came to be rejected. The order passed by the Trial Court has been
carried in Appeal and the said Misc Civil Appeal is pending, however the order
of status-quo is operating in the said Appeal. The parties have produced
material by way of 7/12 extracts as well as measurement maps which do not
show the existence of the trees. However the photographs produced by the
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Plaintiff shown the existence of the tress. The dispute being one restricted to
the cutting of trees by the Defendants and also as regards the relief of
injunction sought by the Plaintiff against the Defendants, the appointment of
the Court Commissioner under Order XXVI Rule 9 would only result in
elucidation of the matter in controversy. It is not a case where the Plaintiff has
not produced any material or that there is any dispute about the ownership of
the Plaintiff in so far as the land bearing Gat No.1465 or ownership of the
Defendants in so far as Gat No.1464 is concerned. However, the said material
having been found to be insufficient by the Trial Court in deciding the
application Exhibit 5 filed for temporary injunction, the appointment of the
Court Commissioner in such a situation cannot be said to result in collection of
evidence through the medium of Court. It is well settled that to resolve a
dispute regarding the boundary between two properties a Court Commissioner
can be appointed (see 2011(3) Bom.C.R. 807, Kolhapuri Bandu Lakade Vs.
Yaooappa Chinappa Lakade (deceased) through Pooja @ Poojari Y. Lakade &
Ors). The Trial Court as can be seen from the impugned order has proceeded
on an erroneous premise that on two earlier occasions the commissioner was
appointed. The Trial Court by observing so seems to be referring to the
measurement maps produced by the Plaintiff and the Defendants. The said
measurement maps were prepared on the request of the Plaintiff and the
Defendants and were not prepared by any Court Commissioner which was
appointed by the Court. The reliance placed by the learned Counsel for the
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Respondent Nos.1 to 5 on the letter dated 28-3-2012 is also misplaced, the said
letter is addressed to the Defendant No.1 in respect of the measurement of the
Plaintiff's land Gat No.1465 and informing the Defendant No.1 of the said
measurement. In my view, the said letter can hardly support the case of the
Defendants that the appointment of the Court Commissioner is not necessary.
8 In my view, for the afore stated reasons, the impugned order
rejecting the application for appointment of the Court Commissioner is
required to be quashed and set aside and is accordingly quashed and set aside.
The TILR, Kagal is appointed as Court Commissioner he will carry out the
commission work in terms of the prayers sought in the said application Exhibit
42. In so far as prayer clause (c) of the said application is concerned, the
Petitioner would be at liberty to file a separate application, contingent upon
the report of the Court Commissioner. The Petition is allowed to the aforesaid
extent. Rule is accordingly made absolute in the aforesaid terms with parties to
bear their respective costs of the Petition.
9 The parties to appear before the TILR on 17th December, 2014. The
TILR to thereafter fix the schedule as per his convenience by giving pre
intimation to the parties.
[R.M.SAVANT, J]
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