Vasantrao Digambarrao Nalkande vs Raghunath Deolal Nalkande
2016 Latest Caselaw 4363 Bom

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




                                                                                     
                                                             
                              SECOND APPEAL NO.117 OF 2015


                Vasantrao Digambarrao Nalkande,




                                                            
                aged : 57 years, Occ. Agriculturist,
                R/o. Balapur (Naka), Now Hingana, 
                Tq. Balapur, Distt. Akola.                                     APPELLANT




                                              
                                      ...VERSUS...
                             
                Raghunath Deolal Nalkande,
                aged : 55 years, Occ. Agriculturist,
                R/o. Hingana (Shelad), Post Kanheri
                            
                (Gawali), Tq. Balapur, Distt. Akola.                  RESPONDENT

     -------------------------------------------------------------------------------------------
     Shri U.J.Deshpande, counsel for appellant
      

     Shri R.D.Bhuibhar, counsel for respondent
     -------------------------------------------------------------------------------------------
   



                              CORAM: R. K. DESHPANDE, J.

                              DATE    : 2     nd  AUGUST, 2016 .

     ORAL JUDGMENT





                1]             The substantial  question of law  involved in the

                matter is as under;

Whether the lower appellate Court could have remanded the matter back to the trial Court for carrying out measurement by the Court Commissioner after removing the defects pointed out by the lower appellate Court?

Admit.

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Heard finally by consent of the learned counsels

appearing for the parties.

2] The accurate map showing correct

measurements so as to decide the ultimate question of

alleged encroachment was required to be prepared by the

Cadastral Surveyor. The lower appellate Court has pointed

out some defects in the procedure of preparing such map,

deposed by the Cadastral Surveyor himself. The relevant

observations of the lower appellate Court are contained in

Paragraph No. 18, which is reproduced below.

"18] It is important to point that the witness in his cross

examination has given candid admission by saying that the Tipan extract was prepared by him. The said Tipan extract is produced at Exh.86. There is note on the Tipan extract Exh.86 that the sub divisions No. 1 and 2

of survey No. 6 are canceled and Survey No. 6 is intact survey number. As indicated above, for detecting encroachment, there has to be authentic Tipan extract. In the present case, the Cadestrial surveyor himself prepared the Tipan extract. It is important to point out that the super imposed Tipan extract which should be on a tracing paper is not coming forth. The Cadestrail

surveyor has admitted that super imposed Tipan is not produced in this case. To my mind, for deciding the question of encroachment, super imposed Tipan extract on tracing paper was a material document. In addition to this, it is important to point out that as per version of the Cadestrial surveyor, there were five sub divisions of survey No.6. He has admitted that the sub divisions of survey No. 6 are not shown in the Tipan extract. It has also come in the evidence of the Cadestrial surveyor that as per 7x12 extract, sub division No.1 is shown in the name of the plaintiff. However, the plaintiff was found in possession of sub- division No.3. There is no explanation of the plaintiff on this fact. In view of these deficiencies, I find that the

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factum of encroachment could not have been inferred."

3] In the light of the aforesaid observation made by

the lower appellate Court, the Cadastral Surveyor is required

to carry out the measurement by observing the procedure

deposed by him. The accurate map prepared can help the

Court to adjudicate on existence of any encroachment over

Survey No. 6/1 belonging to plaintiff. The lower appellate

Court could have, therefore, remanded the matter back to the

trial Court. The order dismissing the suit cannot, therefore,

be sustained. The substantial question of law is answered

accordingly.

4] In the result, the second appeal is allowed. The

judgment and order dated 30.08.2014 passed by the lower

appellate Court in Regular Civil Appeal No. 92 of 2010 is

modified by setting aside the dismissal of the suit. The

matter is remanded back to the trial Court for decision in

accordance with law keeping in view the observations made

by the lower appellate Court reproduced above.

The parties to appear before the trial Court on 6th

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September, 2016. No fresh notice shall be issued to the

parties.

                                                          
                                                                   JUDGE




                                                         
     Rvjalit




                                            
                             
                            
      
   







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                                   C E R T I F I C A T E




                                                                             

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Uploaded by : R.V.Jalit, P.A. Uploaded on : 4th August, 2016