Laxman S/O Bija Bhendarkar vs Harichand S/O L. Bhendarkar
2016 Latest Caselaw 7212 Bom

      sa491.06.J.odt                                                                                                    1/3



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                
                          NAGPUR BENCH, NAGPUR




                                                                                 
                                SECOND APPEAL NO.491 OF 2006

                Laxman son of Bija Bhendarkar,
                Aged about 57 years,
                Resident of Sukali,




                                                                                
                Tahsil Sakoli,
                District Bhandara.                                                ....... APPELLANT

                                                 ...V E R S U S...




                                                             
     1]         Harichand son of Lahanu Bhendarkar,
                                   
                Aged about 62 years.

     2]         Dewaji s/o Harichand Bhendarkar,
                                  
                Aged about 37 years.

     3]         Hemraj s/o Harichand Bhendarkar,
                Aged about 32 years.
      


              All residents of Sukali,
   



              Tahsil Sakoli, District Bhandara.                  ....... RESPONDENTS
     -------------------------------------------------------------------------------------------
              Shri C.N. Funde, Advocate for Appellant.
              Shri N.S. Bhattad, Advocate for Respondents.





     -------------------------------------------------------------------------------------------

                           CORAM:  R.K. DESHPANDE, J. 

th DECEMBER, 2016.

                           DATE:      14





     ORAL JUDGMENT



     1]                    The trial Court passed a decree in Regular Civil Suit

No.96 of 1998 on 28.01.2005 directing the defendants to remove

the alleged encroachment and handover the vacant possession of

175 sq.mtr. of land out of Gat No.313 to the plaintiff which is

sa491.06.J.odt 2/3

shown in the measurement map at Exhibit-27 and the corrected

map dated 16.07.2003 filed on record along with the letter at

Exhibit-37. The lower Appellate Court has allowed Regular Civil

Appeal No.24 of 2005 on 03.02.2006. The decree passed by the

Trial Court is set aside and the suit has been dismissed. Hence, the

original plaintiff is before this Court in the second appeal.

2] This Court passed an order on 06.09.2006 admitting

the matter and framing the substantial question of law as under:

Heard.

Admit on the following substantial question of law.

When the learned First Appellate Judge had recorded a finding that no adjudication as to encroachment can be done without measuring both the

lands in possession of the plaintiffs and defendant, did the Appellate Court committed an error of law in failing to remand the case for appropriate enquiry or to remit the issue as to measurement to the Trial Court under Rule 25 of Order 45 of C.P.C. ?

3] It is not in dispute that the property belonging to the

defendant was not measured and without measuring the said

property no finding could have been recorded only on the basis of

the measurement of the property owned by the plaintiff.

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The judgment and order passed by the lower Appellate Court

cannot be sustained. The matter should have been remanded to

the trial Court. The substantial question of law is answered

accordingly.

4] In the result, the judgment and order passed by both

the Courts below are set aside. The matter is sent back to the trial

Court to appoint the Court Commissioner to measure the property

belonging to the defendant. The Trial Court shall permit raising of

objections to such report of the Commissioner and further

cross-examination if necessary. The suit shall be decided afresh.

The parties to appear before the Trial Court on 09.01.2017.

The Trial Court shall decide the matter within a period of twelve

months from the date of first appearance of the parties before it.

JUDGE

NSN