Bombay High Court
Sanjay S/O Ramchandra Gore vs Prabhakar S/O Mukundrao Bundile ... on 15 June, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.319 OF 2015
Sanjay s/o Ramchandra Gore
Aged about ___ yrs., Occ: Service,
R/o 44, Cotton Green Colony No.2,
VMV Road, Amravati,
Dist. Amravati. ....... APPELLANT
...V E R S U S...
1] Prabhakar s/o Mukundrao Bundile
Aged about Major, Occ: Business,
R/o Mocchi Gali, Vilas Nagar,
Amravati.
2] Bhaskarrao Ganpatrao Bundile
Aged about 45 yrs., Occ: Business,
R/o C/o Tirupati Gadh,
Cotton Colony, VMV Road,
Amravati.
3] Keshaorao R. Moraskar
Aged about 64 yrs., Occ: Retired,
R/o Mahalaxmi Colony,
Near Saraswati Vidyalaya,
Daryapur, Akot. ....... RESPONDENTS
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Shri A.K. Neware, Advocate for Appellant.
Shri R.J. Shinde, Advocate for Respondent No.3.
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CORAM: R.K. DESHPANDE, J.
th JUNE, 2016.
DATE: 15
ORAL JUDGMENT
1] Regular Civil Suit No.354 of 2003 for grant of declaration,
injunction, removal of encroachment and possession was dismissed by
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the trial Court by its judgment and order dated 31.03.2009. By the same
decision the trial Court also rejected the counter claim. The plaintiff
preferred Regular Civil Appeal No.77 of 2009, which has been dismissed
by the lower Appellate Court on 15.01.2015, and hence, this second
appeal by the original plaintiff.
2] Since it is a matter of removal of encroachment over plot
No.38 belonging to a plaintiff and also the case of alleged encroachment
on the plot Nos.37 and 39 of the defendant Nos.1, 2 and 3 respectively,
the trial Court appointed the T.I.L.R. as Court Commissioner to measure
the land on 28.02.2002. The land was measured by T.I.L.R. on
11.04.2007 and the report was submitted to the Court along with the
map which is marked as Exhibit-19. The Courts below have disbelieved
the report of the Court Commissioner as it is found that the Court
Commissioner did not follow the norms prescribed for carrying out the
measurement. The learned counsels appearing for the parties submit that
the matter can be disposed of finally at the stage of admission itself on
the following substantial question of law:
Whether the Courts below ought to have appointed the
T.I.LR. afresh for carrying out the measurement in
accordance with the norms after giving notice to the parties
concerned ?
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3] Admit.
4] Heard finally by consent of the learned counsels appearing
for the parties.
5] The learned counsels agree that the matter can be remanded
back to the trial Court for deciding it afresh for appointing T.I.L.R. as a
Court Commissioner under Order 26 Rule 9 of Code of Civil Procedure in
view of the two decisions of this Court in the case of Kolhapuri Bandu
Lakade v. Yallappa Chinappa Lakade, since deceased through Pooja @
Poojari Y. Lakade and others reported in 2011(3) Mh.L.J. 348 and in the
case of Dattatray Namdev Kalake v. Bapu Bhairu Bhivungade and others
reported in 2015(1) Mh.L.J. 892. The Court Commissioner is required to
carry out the measurement in accordance with the norms fixed for that
purpose taking into consideration the defects pointed out by the Courts
below in carrying out the measurements.
6] In the result, the second appeal is allowed. The judgment
and decree passed by the trial Court in Regular Civil Suit No.354 of 2003
on 31.03.2009 as well as counter claim, is hereby quashed and set aside
along with the judgment and order passed by the lower Appellate Court
in Regular Civil Appeal No.77 of 2009 on 15.01.2015. The matter is
remitted back to the trial Court to decide the suit as well as the counter
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claim afresh by appointing the Court Commissioner and permitting the
parties to lead evidence. The parties to appear before the trial Court
on 18.07.2016.
JUDGE
NSN
