Bombay High Court
Ishwar S/O Sadashiv Hattimare vs Kisan S/O Gonduji Madankar on 24 February, 2016
Bench: A.B. Chaudhari
sa.104.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
SECOND APPEAL NO. 104/2015
Ishwar s/o Sadashiv Hattimare
Aged about 51 years, occu:Agriculturist
R/o At village Kholmara
Tah. Lakhandur, Dist. Bhandara,. ... APPELLANT
v e r s u s
Kisan s/o Gonduji Madankar
Aged about 75 years, occu: Agriculturist
R/o at village Kholmara Tah. Lakhandur
Dist.Bhandara. .. ... RESPONDENT
...........................................................................................................................
Mr. N.B. Kalwaghe, Advocate for the appellant
Mr. N.M. Jibhkate, Advocate for respondent
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
DATED : 24th February, 2016
JUDGMENT:
1. Admit.
2. The Second Appeal is taken up for final hearing in view of the short
controversy involved and in the light of the fact that the case is squarely covered by
the judgment of the Hon'ble Supreme Court in the case of Haryana Wakf Board vs.
Shanti Sarup and others :(2008) 8 SCC 671; and a plethora of judgments
rendered by learned single Judges of this Court, on the question whether the Courts
below committed an error in law in not making an appointment of Cadestral
Surveyor under Order 26 Rule 9 of the Civil Procedure Code, with a direction to
sa.104.15
measure both the fields i.e. of plaintiff as well as defendants which were adjacent,
to find out and fortify the claim made by both the parties for measurement of land,
about their encroachment since it is admitted position that only one field was
measured and the Application for that purpose (Exh.17) was duly made by the
appellant/plaintiff in the suit itself.
3. Heard learned counsel for the rival parties for quite some time.
4.
The appellant/plaintiff made an Application (Exh.17) under O.26 R.9
CPC, for appointment of Cadestral Surveyor for local inspection i.e. measurement of
both the fields i.e. plaintiff as well as defendant. After settlement of issues, the
respondent/defendant filed his reply, which I have perused carefully, in which he
took a stand that there was necessity to measure both the lands. But the learned
trial Judge rejected that Application on the grounds that the Application should have
been filed prior to the settlement of issues and that there is no duty cast on the
Court to go on appointing Commissioner/s for collecting evidence. The reasons
given by the learned trial Judge must be held to be faulty and not in accordance with
law. It is common knowledge that only after the settlement of issues, the parties to
the suit know what the evidence is to be adduced and therefore it is wrong to say that
Application (Exh.17) was belatedly filed. Insofar as the second reason is concerned,
I find that various single Judges of this Court have taken a consistent view that there
is a duty cast on the Court, in such a case, to make appointment of Court
Commissioner because the ultimate aim of the Court is to find out the truth to do
justice between the parties. This view is fortified by the judgment of the Hon'ble
sa.104.15
Supreme Court in the case of Haryana Wakf Board (supra). Reading the findings
recorded by both the Courts below, vividly show that the suit was dismissed on the
ground that the defendant had measured his land and the plaintiff did not bring forth
the measurement map, which he allegedly stated in the cross-examination done
many moons ago. Relying on such an admission, by chance, in the cross
examination there is hardly to find out an attempt on the part of the Courts below to
find out the truth. It was therefore incumbent on this Court to allow the Application
(Exh.17) and appointment of Cadestral Surveyor, asking him to measure both the
lands, at the cost of the plaintiff, by giving notice to both the parties and other
concerned parties and upon comparison of the maps lying with the Land Records
Department, to make a report accordingly. There is therefore failure on the part of
the trial Judge as well as lower Appellate Court to exercise the jurisdiction vested in
it. In that view of the matter, I think the Courts below committed an error in
dismissing the Suit, without undertaking the exercise, as above.
5, The only order that now should be made, is to remit the matter to the
trial Judge for allowing the Application (Exh.17) and then proceed further. In view
of the above, I make the following order :
ORDER
a) Second Appeal No. 104/2015 is partly allowed.
b) The impugned judgments and decree dated 11.10.2010 passed by learned
Civil Judge Junior Division, Lakhandur and dated 18.09.2014 in Regular Civil
Appeal No.135/2010 made by the learned principal District Judge, Bhandara, both
are set aside.
sa.104.15
c) The Application (Exh. 17) filed by the appellant/plaintiff stands allowed and
the learned trial Judge is directed to appoint a Cadestral Surveyor for measurement
of both the sites, asking him to hear both sides, make measurement in the presence
of contesting parties with the evidences they have and thereafter make a report.
d) The trial judge shall fix the cost of measurement, to be paid by the
appellant/plaintiff, to the Department of Land Survey.
e) The parties are directed to appear before the trial Judge on 28
March,2016
th
who shall then proceed further in accordance with law.
f)
Since the Suit was filed in the year 2007, the trial Judge shall make every
endeavour to dispose of the suit as expeditiously as possible and, in any case, within
a period of one year from the date of appearance,
g) The parties shall be at liberty to object to the Surveyor's report, if so advised.
JUDGE
sahare
