Ram Bhagurm Mirkale vs Satish Shrikrushna Salunke And ...
2016 Latest Caselaw 6022 Bom

                                                         WP No. 11008/2015
                                           1




                                                                          
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO. 11008 OF 2015

              Ram Bhaguram Mirkale,
              Age 60 years, Occu. Agri.,
              R/o. Sale Galli, Latur,




                                                 
              Dist. Latur.                         ......Petitioner

                      Vs.




                                        
     1.       Satish Shrikrushna Salunke,
              Age 34 years, Occu. Agri.,

     2.
                             
              Sopan Shrikrushna Salunke,
              Age 32 years, Occu. Agri.,
                            
     3.       Shrikrushna Namdeo Salunke,
              Age 60 years, Occu. Agri.,
              Dist. Latur.

     4.       Archana Sopan Salunke,
      

              Age 30 years, Occu. Agri &
              Household, All R/o. Bhoisamudrga,
   



              Tal. & Dist. Latur.               ........Respondents.

                                        ...
                   Mr. R.P. Adgaonkar, Advocate for petitioner.





             Mr. T.M. Venjane, Advocate for respondent Nos. 1 to 4.
                                        ...

                                        CORAM : T.V. NALAWADE, J.
                                        DATED : 14th October, 2016.





     JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent,

heard both the sides for final disposal.

2. The present proceeding is filed to challenge the

WP No. 11008/2015

order made on Exh. 27 in Regular Civil Suit No. 301/2013,

presently pending in the Court of Civil judge, Junior Division,

Latur. The application was filed by the present petitioner,

plaintiff for appointment of Court Commissioner, Cadestral

Surveyor, T.I.L.R. for taking measurement to ascertain the

encroachment made by the defendants on the land of plaintiff.

The Trial Court has rejected the application by observing that

two contradictory reliefs are claimed in the plaint like injunction

and possession. It is also observed that prior measurement was

not taken and the record of prior measurement was not

produced and due to that such relief cannot be given.

3. It appears that even the rough hand sketch map

along with plaint is not filed which is the requirement as per the

Maharashtra Amendment to Order 7, Rule 3 of Civil Procedure

Code. However, the plaint shows that it is specifically mentioned

that the defendants have made encroachment of 5 R. portion

from western side and 2 R. portion from southern side and thus,

there is allegation that there is encroachment over 7 R. portion.

There is no requirement of law that the measurement needs to

be done first through surveyor and only after that suit can be

filed for removal of encroachment and possession. Thus, the

reasoning given by the Trial Court cannot sustain in law. Other

WP No. 11008/2015

reason that there are two contradictory reliefs claimed is also

not acceptable. The area of land owned by plaintiff is around 83

R. and he is claiming injunction against the defendant to see

that no further encroachment is made and no damage is caused

to the common bandh. However, the plaintiff has formed opinion

that there is encroachment made of 7 R. and for ascertaining the

encroachment he wants the measurement through T.I.L.R. In

view of these circumstances and to have final decision in respect

of the dispute, it is desirable that the Court Commissioner needs

to be appointed.

4. So, the petition is allowed. The order made by the

learned Judge of the Trial Court is hereby set aside. The

application at Exh. 27 in aforesaid suit is allowed. T.I.L.R. of the

concern Tahsil is hereby appointed as Court Commissioner. The

Court Commissioner is to take measurement of the land of

plaintiff and surrounding lands including the lands of defendants

to ascertain the encroachment. The cost of the measurement is

to be born by the plaintiff which is to be deposited well in

advance.

Rule is made absolute in aforesaid terms.

[ T.V. NALAWADE, J. ] ssc/