Meenadevi W/O Vasdev Vatnani vs Narmadabai @ Leelabai W/O ...
2015 Latest Caselaw 203 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                     NAGPUR BENCH, NAGPUR




                                            
                 SECOND APPEAL NO.149 OF 2015




                                 
                  
     Meenadevi w/o. Vasdev Vatnani,
     Aged about 69 years, Occ. Business,
     r/o. Khaparde Garden, Amravati,
                 
     Tq. and District Amravati.    ..........     APPELLANT


          // VERSUS //
      
   



     Narmadabai @ Leelabai w/o. Gopaldas
     Zanwar, Aged about 69 years, Occ.
     Business, r/o. Irwin Chowk,
     Camp Road, Amravati, Tq. and





     District Amravati.                ..........     RESPONDENT


     -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
              Mr.R.M.Sharma, Adv. for the Appellant.





             Mr.R.D.Wakode, Adv. for the Respondent.
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-




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                                CORAM     :  A.P.BHANGALE,  J.

                                DATE         :  21.8.2015. 




                                                   
     ORAL JUDGMENT      :

1. Heard submissions at the bar advanced on behalf of

the learned Counsel for the appellant.

2. This Second Appeal is preferred against the Judgment

and Order passed by the Principal District Judge, Amravati,

dt.5.3.2014 in Regular Civil Appeal No.2 of 2008 whereby

after setting aside the Judgment and Order passed by the

trial Court in Regular Civil Suit No.107 of 1998 passed by

6th Joint Civil Judge (Jr.Dn.), Amravati on 24.10.2007, the

learned 1st Appellate Judge dismissed the suit for

possession and removal of encroachment and granted

perpetual and mandatory injunction directing the

defendant to stop flowing of rain water falling on terrace of

the plaintiff and to divert the rain water falling from the

outlets mentioned as D1 to D3 away from the approach

way.

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3. The learned Counsel for the Appellant invited my

attention to the fact that the suit was instituted by the

plaintiff in respect of the plot admeasuring 3200 sq. ft.

bearing plot no.17, Sheet no.48 at mouza Tarkheda,

pragane Badnera, Tq. and District Amravati known as

Khaparde Garden area. The plot was purchased by the

plaintiff under registered sale deed dt.16.1.1995 vide Index

No.189 of Sub-Registrar, Amravati, City-2 with a house

built thereon and including approach road admeasuring

about 61 ft. long x 10 ft. width. According to the learned

Counsel for the appellant, there was a map in respect of suit

property attached to the sale deed itself which was

registered sale deed. The said plot is bounded on eastern

side by plot of Dr.Dakre, on western side by Savatri Bhawan

Chawl, on northern side by the plot of defendant and on

the southern side by the plot of Dr.Mudliar and

Dr.Deshmukh. Thus, despite full description of the suit plot

and map, it is case of the plaintiff that the defendant had

encroached upon her land to the extent of 2 ft. x 8 ft. and

this was shown in the map annexed with the plaint.

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Continuous encroachment was alleged on the part of the

defendant. It was increased to the extent of 94.25 sq. ft.

The defendant had also constructed drain affixing pipeline

on the terrace and leaving its outlets open in such a way

that rain water from the terrace of the defendant was

falling on the plot of the plaintiff, for which Municipal

Corporation had also issued notice to the defendant calling

upon her to remove unauthorised construction, which

notice was challenged by her in Regular Civil Suit No.408

of 1997. But that suit was dismissed. The defendant had

also filed one Civil Suit No.6 of 1996 against the plaintiff in

collusion with residents of Savatri Bhavan building. That

suit was also dismissed.

4. The grievance of the plaintiff about encroachment

made by the defendant since 6.1.1996 continued.

Therefore, the plaintiff had sought permanent injunction to

restrain the defendant from diverting flow of the rain water

falling on the house. According to the defendant,

Judgment in Regular Civil Suit No.408 of 1997 has no

concern with the dispute in question. She had preferred

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appeal bearing Regular Civil Appeal No.100 of 2004 against

dismissal of the suit. The defendant had denied the alleged

encroachment made by her. The learned trial Judge found

that the plaintiff had failed to establish fact of

encroachment made by the defendant as shown in the

plaint map EFG/ELM. The trial Court also decided the

issue against the plaintiff about alleged illegal construction

made by the defendant and the pipeline constructed

keeping open outlet and allowed accumulation of water in

her land. According to the learned Counsel for the

appellant, he had made an application for appointment of

competent Surveyor so as to find the extent of

encroachment made by the defendant after measurement of

the suit property in presence of parties. However, that

application was rejected by the trial Court, though it was a

boundary dispute in respect of the suit property and the

encroachment was alleged on the part of the defendant.

The entire case of the plaintiff was in respect of alleged

encroachment made by the defendant. It is also submitted

that the plaintiff had examined a witness who carried out

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measurement privately on behalf of the plaintiff and also

prepared map in respect of the suit property. However, the

learned trial Judge giving negative finding on the issues

framed in respect of boundary dispute was pleased to

dismiss the suit. The appellate Court also did not consider

that in such a case of boundary dispute measurement plan

drawn in presence of disputed parties could have been

drawn by competent Surveyor such as Taluka Inspector of

Land Records or District Inspector of Land Records. Such

survey report pursuant to measurement of the suit property

can certainly assist the trial Court or the first Appellate

Court as final Court of facts to effectively and completely

decide the real controversy between the parties.

5. My attention is invited to the ruling by this Court in

the case of Suleman Khan s/o. Mumtajkhan and

Others .vs. Bhagirathibai wd/o. Digamber Asalmol and

another reported in 2014 (4) Mh.L.J. 250. This Court has

observed in para 9 of the ruling as follows :

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"9. In cases to determine encroachment, it is always desirable to have disputed suit property measured by

competent surveyor to find out encroachment and its

extent. Oral evidence cannot prove such contentious issue conclusively. In a suit where parties are disputing boundaries of property and one

of the parties alleges encroachment made by another party to the suit inside suit property. In such case the plaint map as evidence in respect thereof is vital

document for to decide real controversy between the

parties finally. This Court has time and again expressed opinion about the necessity of duly

drawn measurement plan/map in any suit in which there is a boundary dispute. The Trial Court as well as 1st Appellate Court which are Court of Facts, are duty

bound to ascertain that a map is drawn to

the appropriate scale by competent Government official from the office of TILR or DILR, as the case may be, so that measurement of suit property is

carried out in presence of the parties after due notice to them or even if they are absent, so as to ensure that the suit property is properly measured, boundaries are

fixed and boundary dispute is finally settled by producing map in the Court by the plan maker who can prove its genuineness by deposing in support of such plan/map, if it is so necessary in the absence of

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admission for exhibiting the map. The Trial Court can certainly raise presumption of accuracy and

genuineness of such map in view of Section

83 of the Evidence Act if map is drawn by competent authority. (See: Ram Kishore Sen & ors v. Union of India & ors reported in AIR 1966 SC 644) When such

vital document is duly produced, proved and established, necessary detailed decree can be followed if there is any encroachment on the suit property. As

held by this Court in Vijay Shende's case (supra), in

such cases, fact of encroachment may be proved partly by oral evidence although the extent of

encroachment cannot be proved in absence of public records without following due procedure emerging from Section 36 and Section 60 of the

Evidence Act. In view of this recent judicial

precedent referred to above, in the larger interest of justice, when it appears that the trial Court as well as 1st Appellate Court failed to follow

proper procedure in this regard to ascertain the boundaries of the suit property. I must allow this appeal by setting aside impugned judgments and

orders with direction to the trial Court concerned to consider appointment of Court commissioner; who shall be competent official from the Office of Taluka Inspector of Land Records and District

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Inspector of Land Records, as the case may be. The Court Commissioner, if required, shall secure copies

of necessary public record relating to

Gat/Survey number, subject matter of dispute for to settle boundaries of the suit property by carrying out measurement after due notice to the

parties to the suit and also issuing notice to adjacent owners/possessors to the suit property. He shall submit his written report to the trial Court together

with detailed map. Learned trial Court after

considering such written report may allow the parties to lead additional evidence if it deems it fit and

shall pass order according to law. Parties shall appear before the trial Court on 28th April 2014. It is desirable that the trial Judge shall endeavour to

get an agreed map on record and in the absence of

such agreed map/plan can depend upon evidence obtained through the Court Commissioner as indicated above."

6. It cannot be disputed that, in case of boundary

disputes, the Court can be assisted effectively and properly

by the competent Surveyor who may draw a measurement

plan in presence of parties to the suit so that extent of

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encroachment, if any, is brought to the notice of the Court.

The encroacher is bound to remove such encroachment and

pay for damages if claimed in respect of such encroachment

made for the duration which the Court of fact may find

upon evidence led by the parties. It is always desirable that

the suits involving boundary dispute are decided on the

basis of measurement plan or map drawn to the scale by

the competent Government Official deputed from the Office

of T.I.L.R. and D.I.L.R. as the case may be. The Court can

insist upon such measurement plan drawn expeditiously by

the competent Surveyor from the public Office. The plan

maker may be examined if so required to prove

genuineness of the plan if parties do not agree upon the

same for exhibiting thereof. Otherwise also, the trial Court

can certainly raise presumption as to accuracy and

genuineness of such map in view of Section 83 of the

Indian Evidence Act. Such document can surely help the

cause of ending the dispute so that the suit can be heard

and disposed finally; expeditiously and as early as possible

in the larger interest of justice on the basis of measurement

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map plan drawn to the scale by the competent Government

Official. That being so, the impugned Judgments and

Orders are set aside. The proceedings are remitted back to

the trial Court. The learned trial Judge concerned shall

appoint competent Government Official as Court

Commissioner or may call upon the D.I.L.R. or T.I.L.R, as

the case may be to depute a competent person from

Government Office to draw measurement plan in the

appropriate scale so that encroachment, if any, as alleged is

detected and is brought to the notice of the trial Court and

consequent just and proper order according to law be

passed so as to solve boundary dispute finally and

effectively.

That being so, the parties to appear before the trial

Court on 30.10.2015. The learned trial Judge to hear the

parties and pass appropriate order for getting measurement

map drawn to the scale in respect of the suit property on

record through the competent Government Official and

thereafter hear the parties and record additional evidence,

if any, adduced by the parties. The learned trial Court shall

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decide the suit afresh in accordance with law bearing in

mind the observations made in the rulings cited.

Needless to state that the trial Court shall consider all

evidence and admissible documents produced on record in

accordance with law.

The Second Appeal is disposed of in the above terms.

No order as to costs.

                     ig                          JUDGE
                   
      jaiswal