Shailaja Devdatt Lele And Anr vs Mr. Krsuhnakumar Nilkanth Lele ...
2016 Latest Caselaw 4047 Bom

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    IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
            CIVIL APPELL ATE JURISDICTION




                                                        
               APPEAL FROM ORDER NO. 634 of 2015

    1. Mr.Shailaja Devdatt Lele,
    R/at Village - Kondhle,




                                                       
    Tal. Wada, Dist. Thane.

    2. Mr.Harshal Devdatt Lele,
    R/at Village - Kondhle,



                                               
    Tal. Wada, Dist. Thane.                              ... Appellants

                    v/s
                                   
                                  
    1. Mr.Krushnakumar Nilkanth Lele,
    2. Mr.Arvind Deshmukh
    3. Mr.Manoj Dattatray Chaudhari
    All residing at Village - Kondhle,
        


    Tal. Wada, Dist. Thane; & ors.
     



    4. Group Grampanchayat Kondhle
    Through Sarpanch, Grampanchayat Kondhle,
    Tal. Wada, Dist. Thane.                              ... Respondents





    Mr.Sachin Tigde for the appellants.
    Mr.Omkar Nagvekar i/by P.R.Arjunwadkar for Resp.No.1.





                                             Coram: N.M. Jamdar, J.

Dated: 21 July 2016

ORAL JUDGMENT:

By this appeal, the Appellants challenge the judgment and

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orders passed by the learned District Judge, Thane, dated 26 March

2015, partly allowing the appeal and remanding the proceedings to the learned Civil Judge, Junior Division, Wada.

2 The Respondents filed a suit bearing No.30 of 2009 seeking

relief of declaration, removal of encroachment and injunction. In this suit, it was the case of the Respondent/Plaintiff that the Appellant had encroached on the suit property to the extent of 300 sq.ft. and

sought relief of injunction and for possession. The Appellants filed

the written statement and contested the suit. The Appellants denied that any encroachment was made by them. The learned Civil Judge,

by the judgment and order dated 2 April 2014, primarily relying on statement made by the Respondent/Plaintiff in his deposition,

concluded that the Respondent/Plaintiff has failed to prove that any

encroachment was made. The appeal was filed by the Respondent/Plaintiff in the District Court, Thane. The learned District Judge came to the conclusion that, in the dispute of this

nature it was necessary to appoint the Commissioner to carry out local investigation and prepare a map so that it will assist the Court in deciding the controversy. The learned District Judge relied upon the

decision of this Court in the case of Antonio Gomes alias Antonio Bento Gomes v/s Rosario Salvador Carneiro & ors .1, in which this Court, after considering various other decisions, has opined that appointment of the Commissioner in a boundary line dispute should

1 2014(4) Mh.L.J. 366.

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generally be made so that it assists the Court in deciding such disputes

effectively.

3 Learned counsel for the Appellants submitted that the appointment of the Commissioner was not necessary as the

Respondent/Plaintiff has admitted certain positions which will show that there is no encroachment. I have gone through the evidence of the Respondent/Plaintiff. It cannot be stated that the so called

admission of the Respondent/Plaintiff is unequivocal so as to dismiss

the entire suit on the basis of this statement. The evidence of the Respondent/Plaintiff will have to be considered in toto. Therefore

the conclusion reached by the learned District Judge that appointment of the Court Commissioner in the present facts of

present case was required, cannot be faulted. The order passed by the

learned District Judge is in consonance with the law laid down by this Court. There is no error in the order passed by the learned District Judge so as to warrant interfere in the appeal. Both the parties will get

an opportunity to contest the report of the Commissioner.

4 The learned District Judge has already directed that the trial be

completed within a period of six months. The learned Civil Judge will complete the trial within a period of six months from the date the writ of this Court reaches it.

    5      The Appeal from order is dismissed.





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    6      Registry to communicate the order forthwith.




                                                                           
    7      All contentions of the parties on merits, are kept open to be




                                                  
    decided in the suit.




                                                 
                                                 (N. M. Jamdar, J.)