Bombay High Court
Shri Tima S/O Fagoji Menghre And ... vs The Collector, Nagpur And Others on 5 May, 2016
Bench: Prasanna B. Varale
1 WP1054.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 1054 OF 2015
PETITIONERS : 1] Shri Tima S/o Fagoji Menghre,
Aged about 49 years, Occu. Agriculture,
2] Shri Shankar S/o Harba Wadandre,
Aged about 69 years, Occu. Agriculture,
3] Shri Liladhar S/o Gangaram Wadandre,
ig Aged about 44 years, Occu. Agriculture,
4] Shri Chandrabhan Vithobaji Yewale,
Aged about 49 years, Occu. Agriculture,
5] Shri Giyalal Pandhre,
Aged about 59 years, Occu. Agriculture
6] Shri Bhayyaram S/o Ganpatrao Menghre,
Aged about 54 years, Occu. Agriculture,
7] Shri Mirgu Gangaram Wadandre,
Aged about 51 years, Occu. Agriculture
Petitioners 1 to 7 R/o Bhojapur, Tah. Ramtek,
District Nagpur.
- VERSUS -
RESPONDENTS : 1] The Collector, Civil Lines, Nagpur.
2] The Sub-Divisional Officer, Ramtek,
Dist. Nagpur.
3] The Tahsildar, Ramtek, Dist. Nagpur.
4] The Gram Panchayat, Manapur,
Tah. Ramtek, Dist. Nagpur,
through its Sarpanch.
5] Shri Arvind Natthuji Ashtankar,
Aged about 36 years, Occu. Agriculture,
::: Uploaded on - 05/05/2016 ::: Downloaded on - 30/07/2016 01:01:43 :::
2 WP1054.15.odt
6] Shri Sudam Natthuji Ashtankar,
Aged about 34 years, Occu. Agriculture,
Respondent nos.5 and 6 R/o Bhojapur,
Tah. Ramtek, Dist. Nagpur.
-------------------------------------------------------------
Mr. A. R. Ingole, Advocate for the petitioners.
Mr. A.M. Balpande, A.G.P. for the respondent nos.1 to 3
Mr. C.F. Bhagwani, Advocate for the respondent nos.5 and 6.
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
Judgment reserved on : 11.03.2016.
Judgment delivered on : 05.05.2016
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of
the learned counsel for the parties, the petition is heard finally at the
stage of admission itself.
2] By the present petition, the petitioners challenge the order
dated 17.01.2015 passed by the learned 4th Joint Civil Judge, Senior
Division, Nagpur, in Regular Civil Suit No. 423/2010, thereby rejecting
application (Exh.84) filed by the petitioners/plaintiffs for appointment
of Commissioner for measurement of the land.
3] A limited controversy is involved in the present petition.
The petitioners have filed a civil suit against the respondents/
3 WP1054.15.odt
defendants for declaration, permanent and mandatory injunction. It
was the case of the petitioners that the respondents have erected
construction and caused encroachment in the property situated in
village Bhojapur, known as 'abadi land'. Thus, the petitioners/plaintiffs
prayed for passing decree against the respondent/defendant nos.5 and
6, declaring that the construction erected by defendant nos.5 and 6 over
the suit property as illegal, null and void. The petitioners/plaintiffs also
prayed for permanent injunction against the defendant nos.5 and 6,
restraining them from making construction over the property along with
mandatory injunction and direction to the respondent nos.1 to 4 to
remove the unauthorized construction. The suit is opposed by the
defendant nos.5 and 6 by filing written statement. It is submitted in the
written statement that the petitioners themselves are the encroachers
and they have made illegal and unauthorized construction. The
respondents/ defendants also disputed the map on which reliance was
placed by the petitioners/plaintiffs, submitting that the map was not
properly drawn. The petitioners/plaintiffs filed application (Exh.84)
under Order XXVI Rule 9 of the Civil Procedure Code for appointment
of Commissioner. It was submitted in the application that the
petitioners/plaintiffs have adduced evidence on record and summons
was issued to the respondent nos.3 - Tahsildar, Ramtek so as to
4 WP1054.15.odt
produce the documents in respect of the suit property. Though, a
summons was issued to the respondent no.3 - Tahsildar, he failed to
produce on record the relevant documents and only placed 7/12
extract. It was submitted that said 'aabadi land' is vested with the
government. It was further submitted that in order to appreciate the
controversy in respect of the encroachment on the land in question, the
Commissioner be appointed to measure the land. The application was
opposed by the respondents/ defendants submitting that the respondent
no.3 - Tahsildar, in response to the summons issued by the Court,
produced before the Court all the relevant documents. It was submitted
that the documents so placed on record were admitted by the
respondents/defendants. It was further submitted that the petitioners
/plaintiffs have submitted a complaint before the respondent no.3 -
Tahsildar and the respondent no.2 - Sub Divisional Officer. There was
also correction of the record by the City Survey Department on carrying
out the measurement of the land in question. The map drawn after
carrying out the measurement of the land was challenged by the
petitioners/plaintiffs by presenting an appeal before the Additional
Collector, Nagpur. In the proceedings of the suit, the plaintiffs offered
their examination and they were subjected to cross-examination also. It
was further submitted that the attempt of the petitioners/plaintiffs is
5 WP1054.15.odt
only to prolong the proceedings and collecting evidence and such
attempt of the petitioners/plaintiffs cannot be permitted. The trial
Court, on considering the rival submissions and also on consideration of
the material placed on record, rejected the application (Exh.84).
4] Mr. Ingole, the learned counsel for the petitioners
vehemently submitted that as the suit is filed by the petitioners
themselves, they could not have been said to be interested in prolonging
the proceedings. The learned counsel further submitted that as the suit
revolves around the controversy of illegal construction and
encroachment of the respondent/defendant nos.5 and 6 over the land
known as 'abadi land' and as the respondent no.3 - Tahsildar failed to
place on record the necessary material, the trial Court ought to have
allowed the application. It was the submission of the learned counsel
for the petitioners that by allowing the application, no prejudice would
have been caused to the respondents, but the Court would have been
assisted with the report of the Commissioner for deciding the
controversy in the matter and could have appreciated the controversy in
a better way. The learned counsel placed heavy reliance on the
judgment of this Court reported in 2014 (2) Mh.L.J. 840 in the matter
of Manikrao Ramji Chawake .vs. Ashok Ambadas Gawande and another.
6 WP1054.15.odt
5] Per contra, Mr. Bhagwani, the learned counsel for the
respondent nos.5 and 6 supported the impugned order passed by the
trial Court. It was submitted by the learned counsel that the trial Court,
by recording the peculiar facts, namely the petitioners/plaintiffs had
produced on record a sketch map prepared by an engineer engaged
through a private firm namely Priti Construction, to put forth their
claim. The trial Court also observed that the issues were framed on
26.09.2014. The petitioners/ plaintiffs tendered evidence by way of
affidvit and also subjected to cross-examination. It was further
observed that the respondent no.3 - Tahsildar, though was party to the
suit as defendant no.3, remained absent and on issuance of witness
summons for calling the record, the record was produced before the
Court, viz. Measurement map dated 28.06.2012 prepared by Taluka
Inspector of Land Records (TILR), the map prepared by Talathi, 7/12
extract, record of rights and the order passed by the respondent no.2 -
Sub Divisional Officer, Ramtek. The trial Court also observed that the
maps and the documents were admitted by the respondents/defendants
and the same were exhibited. The material presented before the Court
reveals that the TILR had remeasured the lands bearing Gat No.30/1,
30/2, 31 and 35 and the corrections were suggested. These corrections
suggested by the TILR were accepted by the respondent no.2 - Sub
7 WP1054.15.odt
Divisional Officer. The order passed by the respondent no.2 - Sub
Divisional Officer was challenged by the petitioners/plaintiffs by
preferring an appeal before the Additional Collector and the same is
pending. The learned counsel for the respondent nos.5 and 6 further
submitted that the trial Court also observed that the petitioners,
alleging encroachment against the defendants, only placed on record a
sketch map. On the contrary it reveals that the defendants have not
encroached over the abadi land or gaothan land. Considering all these
facts, the trial Court found no substance in the application for
appointment of Commissioner so as to measure the abadi land or so as
to resolve the boundary dispute. The Court below also opined that the
application was filed only to delay the matter and collect evidence
through the Commissioner. The learned counsel for the respondent
nos.5 and 6 placed reliance on the judgments of this Court reported in
2012 (2) Mh.L.J. 847 in the case of Chandrarao Hanumantrao Wable
.vs. Dhondu Fula Patil, 2011 (6) Mh.L.J. 334 in the case of Syed
Mushtaque Ahmad Syed Ismail and others .vs. Syed Ashique Ali
Khan Haider Ali, and 2009 (2) Mh.L.J. 487, in the case of Pandurang
Nandlal Chandak and another .vs. Sandip Mukundrao Pensalwar
and another.
6] On a perusal of the material placed on record and also
8 WP1054.15.odt
considering the judgments relied on by the learned counsel appearing
for the respective parties, in my opinion, there is merit in the submission
of the learned counsel for the petitioners. Though, there cannot be any
dispute to the fact that the land was measured by the TILR on an
application and measurement map was prepared. The respondent no.2
- Sub Divisional Officer passed the order with certain suggestions. The
said order passed by the respondent no.2 was challenged by the
petitioners/plaintiffs by preferring an appeal before the Additional
Collector and the same is pending. Thus, the petitioners raised a
dispute on the map prepared by the TILR. There is also merit in the
submission of the learned counsel for the petitioners that even if an
exercise is undertaken to appoint the Commissioner, it will assist the
Court to resolve the dispute and would not cause prejudice to any of the
parties and the petitioners/plaintiffs would gain nothing by prolonging
their own suit.
7] Insofar as the judgments relied on by the learned counsel
appearing for the parties is concerned, the learned counsel for the
petitioners relied on the judgment of this Court in the case of Manikrao
Chawake .vs. Ashok Gawande (supra). The learned counsel for the
respondent nos.5 and 6 relied on the judgment of this Court in the case
of Chandrarao Wable .vs. Dhondu Patil (supra). In the said reported
9 WP1054.15.odt
judgment, there was measurement carried out by the TILR and the
plaintiffs made no grievance about the said measurement. In the
present petition, the measurement earlier carried out by the TILR and
approved by the S.D.O., subjected to certain suggestions, has been
challenged by the petitioners/plaintiffs by presenting an appeal before
the Additional Collector. As such, this judgment differs on the facts and
is of no help to the respondent nos.5 and 6. The learned counsel for the
respondent nos. 5 and 6 also relied on the judgment of this Court in the
case of Pandurang Chandak .vs. Sandip Pensalwar (supra). It will not be
out of place to state that in the subsequent judgment, reported in 2011
(3) Mh.L.J. 347 in the case of Kolhapuri Bandu Lakade .vs. Yallappa
Chinappa Lakade, brother Justice Gavai B R, J. observed that in view of
the Apex Court judgment, the judgment delivered by him in the case of
Pandurang Chandak .vs. Sandip Pensalwar was per incurium. It will not
be out of place to refer to the observations of this Court to that effect,
which read thus :
"16. Insofar as my judgment in the case of Pandurang
nandlal Chandak cited supra is concerned, it is clear
from the said judgment that the judgment of the Apex
Court in the case of Haryana Waqf Board cited supra
was not brought to my notice, nor was it noticed by me
while delivering the said judgment. It can further be
seen that the judgment of the learned Single Judge of
10 WP1054.15.odt
this Court, namely M. S. Vaidya, J. in the case of
Tajmulhussain cited supra was also not noticed by me.
In any case, now in view of the judgment of the Apex
Court in the case of Haryana Waqf Board cited supra,
the view taken by me in the case of Pandurang Nandlal
Chandak cited supra will have to be held as per
incurium."
8] Considering these aspects of the matter, it will also be
useful to refer to the observations of this Court in the matter of
Kolhapuri Bandu Lakade, cited supra, that the report of Court
Commissioner would not be conclusive and if any of the parties are
aggrieved by the same , such a party would always be entitled to cross-
examine the Court Commissioner, so as to challenge the veracity of the
report. Insofar as the judgment relied on by the learned counsel for the
respondent nos.5 and 6 reported in 2011 (2) Mh.L.J. 991 in the case of
Nalubai Narayan Shinde and others .vs. Gopinath Dagdu Shinde is
concerned, in the said judgment, a reliance was placed on the judgment
in the case of Sanjay Namdeo Khandare .vs. Sahebrao Kachru Khandare
and others (2001 (2) Mh.L.J. 959). The said judgment was also
considered by this Court in Kolhapuri Bandu Lakade's case cited supra.
9] Considering the above referred facts, the impugned order
passed by the learned 4th Joint Civil Judge, Senior Division, Nagpur,
11 WP1054.15.odt
rejecting application (Exh.84) seeking appointment of the Court
Commissioner is unsustainable and the same deserves to be quashed
and set aside. In the circumstances, the writ petition is allowed.
The order impugned in the petition, dated 17.01.2015
passed by by the learned 4th Joint Civil Judge, Senior Division, Nagpur,
on application (Exh.84) in Regular Civil Suit No. 423/2010, is quashed
and set aside. The application Exh.84 filed by the petitioners/plaintiffs
for appointment of Court Commissioner is allowed.
Rule is made absolute in the aforesaid terms. Writ petition
is disposed of. No order as to costs.
JUDGE
Diwale
