Chotkha S/O Bashirkha vs Jabunnisa Shabbitkha Pathan And 2 ...
2016 Latest Caselaw 3970 Bom

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




                                                                                    
                              SECOND APPEAL NO. 54 OF 2015 




                                                            
                Chotkha Bashirkha,
                aged adult, Occupation - Cultivator,




                                                           
                R/o. Talegaon (S.P.),
                Tah. Ashti, Distt. Wardha......                                 APPELLANT

                                     ...VERSUS...




                                            
     1]         Jabunnisa Shabbitkha Pathan,
                             
                aged adult, Occ. Household,
                R/o. Amravati, Behind Chchchu Tekadi,
                Tq. And Distt. Amravati.
                            
     2]         Mustakakhan s/o Ajimkha Pathan,
                aged adult, Occ. Dultivator,
                R/o. Talegaon (Shamjipant), Tah. Ashti,
      

                Distt. Wardha.
   



     3]      Voda-phone Cellular Ltd.,
             Nexus Point, 2nd Floor,
             Next to Vidhan Bhavan,
             Near Nagpur Mahanagar Palika,





             Nagpur, Tah.and Distt. Nagpur.......                              RESPONDENTS
     -------------------------------------------------------------------------------------------
     Shri V.T.Deshpande, counsel for appellant
     Shri T.S.Deshpande, counsel for Respondent no. 1 & 2
     Shri P.A.Abhyankar, Advocate for Respondetn No.3





     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE : 19 JULY, 2016 .

     ORAL JUDGMENT


                1]             Admit.

Heard finally by consent of the learned counsels

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appearing for the parties.

2] The trial Court dismissed Regular Civil Suit No.

21 of 2006 on 06.08.2009 for removal of encroachment to the

extent of 160 sq.ft, from the Eastern side of the suit Plot No.

11 in Lay-out No. 56/3. The lower appellate Court dismissed

the Regular Civil Appeal No. 156 of 2009 on 21.03.2014.

Hence, the original plaintiff is before this Court.

3] Both the Courts have found that the Cadastral

Surveyor appointed under Order 26, Rule 9 of C.P.C. has not

carried out the correct measurement of the suit plot as well

as the plots owned by the defendants. The procedure

prescribed for measurement has not been followed. In view

of this, the Courts below ought to have again appointed the

Cadastral Surveyor to carry out the measurement in

accordance with the Rules and by following the procedure

prescribed.

4] The case of the plaintiff is very specific about

removal of encroachment to the extent of 160 sq.ft. (4 x 40

feet) from the Eastern side of the plot. Whether the

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encroachment is by the defendant no.1 or defendant no. 2 is

hardly of any consequence, particularly when both of them

are party to the suit. If it is found that defendant no.1 has

encroached, the decree shall be passed against him and if it

is found that defendant no. 2 has encroached, the decree

shall be passed against him. Both the Courts below have

misdirected themselves to the controversy involved in the

matter.

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

Judgment and Order 21.03.2014 passed in Regular Civil

Appeal No. 156 of 2009 and judgment and order dated

06.08.2009 passed in Regular Civil Suit No. 21 of 2006 are

hereby quashed and set aside. The matter is remitted back to

the trial Court to appoint Cadastral Surveyor with direction to

carry out measurement in accordance with Rules and by

following the procedure prescribed and thereafter the matter

shall be heard on its own merits.

The parties to appear before the trial Court on

22.08.2016.

                                                                   JUDGE

     Rvjalit



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