Nawalsingh Jalamsingh Rajput ... vs Sunil Shankar Supe
2016 Latest Caselaw 1148 Bom

    WP 4783/15                                         1                          Judgment


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.




                                                                                      
                         WRIT PETITION No. 4783/2015




                                                              
    Nawalsingh Jalamsingh Rajput (Patil),
    Age - 62 years, Occ. - Agriculturist,




                                                             
    R/o. Wadaji, Tq. Malkapur, Distt. Buldhana,
    presently at SSS-3, Vishwa Bank Colony,
    Sandipani Nagar, Agar Road,
    Ujjain (MP).                                                              PETITIONER

                                       .....VERSUS.....




                                               
    Sunil Shankar Supe,
    Age about - 68 years, Occ.-Agriculturist,
                              
    R/o Wadaji, Tq. Malkapur, Distt. Buldhana.                                   RESPONDENT
                             
                       Shri P.S. Kshirsagar, counsel for the petitioner.
                                  None for the respondent.


                                             CORAM :SMT.VASANTI A.NAIK, J.
                                              DATE              2           APRIL,      2016.
                                                         :        ND
      
   



    JUDGMENT 

RULE. Rule made returnable forthwith. The petition is heard

finally at the stage of admission as a notice of final disposal was issued to

the respondent on 17.08.2015 and the respondent is duly served.

2. By this writ petition, the petitioner challenges the order of the

trial Court dated 22.06.2015 rejecting an application filed by the

petitioner for appointment of a Commissioner under Order XXVI Rule 9 of

the Code of Civil Procedure for joint measurement of the fields of the

petitioner and the respondent.

WP 4783/15 2 Judgment

3. The petitioner is the original plaintiff. A suit was instituted by

the petitioner against the respondent-defendant for declaration and

removal of the encroachment on the field of the petitioner. The petitioner

claims to be the owner of Survey No.290 of village Wadaji, whereas the

respondent is the owner of Gat No.291. The measurement of the field of

the petitioner was made by the T.I.L.R. Malkapur and it was shown that

certain portion of the field property of the petitioner was encroached

upon by the respondent. The respondent filed the written statement and

denied the claim of the petitioner. It was denied that the respondent had

encroached on the field of the petitioner. The T.I.L.R was examined in

the suit and the T.I.L.R admitted in his cross-examination that he had not

measured the land of the respondent and had measured only Gat No.290

that belongs to the petitioner. As soon as the admission was made by the

T.I.L.R in his cross-examination, the petitioner filed an application for

appointment of a Commissioner under Order XXVI Rule 9 of the Code of

Civil Procedure. The said application was, however, dismissed by the trial

Court, by the impugned order.

4. On hearing the learned counsel for the petitioner and on a

perusal of the application, the map drawn by the T.I.L.R and the

impugned order, it appears that the trial Court was not justified in

rejecting the application for appointment of a Commissioner for the joint

measurement of the fields of the petitioner and the respondent. It

WP 4783/15 3 Judgment

appears from a reading of the map drawn by the T.I.L.R. and also his

cross-examination that the T.I.L.R. had not measured Gat No.291

belonging to the respondent and had measured only Gat No.290,

belonging to the petitioner. It is well settled that in a case of

encroachment, a joint measurement of the fields of the parties is required

to be made. It is held by this Court time and again that in a case of

alleged encroachment, it would be necessary to measure the lands of both

the parties and the exact dividing boundary line should be located and it

should be found out whether the party, against whom, the encroachment

is alleged, has excess land in possession. It would be necessary to refer to

the judgment of this Court reported in 2008(4) All MR 718 (Manohar

Mahadeorao Pagrut Versus Sau.Sunanda Ramdas Tharkar), in this

regard. The trial Court committed an error in rejecting the application

made by the petitioner only on the ground that the petitioner was trying

to collect evidence by the appointment of the Commissioner. It is held

time and again that the appointment of the Commissioner can be made at

any stage of proceedings in a case of encroachment and several matters

are remanded to the trial Court for a fresh decision after carrying out the

joint measurement of the lands of both the parties. The trial Court failed

to consider these aspects of the matter while rejecting the application

filed by the petitioner. The impugned order is erroneous and is liable to

be set aside.

WP 4783/15 4 Judgment

5. Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned order is quashed and set aside. The application of the

petitioner at Exhibit 22 for appointment of the Commissioner is allowed.

It is needless to mention that the petitioner should bear the expenses of

the Commissioner.

Rule is made absolute in the aforesaid terms with no order as

to costs.

                               ig                     JUDGE

    APTE