Balkrishna Gangabishanji Zawar vs Azmat Khan Suban Khan And Anr
2016 Latest Caselaw 5601 Bom

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            WRIT PETITION NO. 8608 OF 2012
                                            




                                                                             
    Balkrishna s/o Gangabishanji Zawar,
    Age : 47 years, Occu. Business,




                                                     
    R/o Plot No. 12, Friends Colony,
    Kokanwadi, Aurangabad                                               PETITIONER

           VERSUS




                                                    
    1.     Azmat Khan s/o Suban Khan,
           Age : 53 years, Occu. Business,
           R/o Kokanwadi, Aurangabad




                                           
    2.     Municipal Corporation,
           Aurangabad, through    
           its Commissioner                                             RESPONDENTS

                              ----
                                 
    Mr. Anil S. Bajaj, Advocate for the Petitioner
    Mr. A.D. Kasliwal, Advocate for respondent No. 1
    Mr. V.V. Pawar, Advocate holding for Mr. S.S. 
    Tope, Advocate for respondent No. 2
       

                              ----
    



                                        CORAM :   SANGITRAO S. PATIL, J.

    JUDGMENT RESERVED ON                    :     2nd  SEPTEMBER, 2016
    JUDGMENT PRONOUNCED ON                  :     27th SEPTEMBER, 2016





     

    JUDGMENT :

Rule. Rule made returnable forthwith. With

the consent of the learned Advocates for the parties,

heard finally.

2. The petitioner, who is original defendant No. 1

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in Special Civil Suit No. 21 of 2011, has impugned the

order dated 2nd December, 2011, passed below application

(Exh-34) by the learned Civil Judge, Senior Division

(Corporation Court), Aurangabad, allowing the said

application and appointing the City Survey Officer,

Aurangabad as Court Commissioner for taking measurement

of the disputed property and submitting the report.

3. Admittedly, plot No. 13 C.T.S. No. 18152 in

Friends Cooperative Housing Society, Kokanwadi,

Aurangabad, is owned by respondent No. 1 while plot No.

12 C.T.S. No. 18151, situate in the same Society to the

East of plot No. 13 is owned by the petitioner. The

above numbered suit has been filed by respondent No. 1

seeking possession of 97.99 square meters of land

alleged to have been encroached upon by the petitioner

from plot No. 13.

4. Respondent No. 1 filed application (Exh-34)

under Order 39, Rule 7(1)(a) of the Code of Civil

Procedure (for short, "the Code") seeking appointment of

the City Survey Officer, Aurangabad as Court

Commissioner for measurement of plot Nos. 12 and 13 in

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order to resolve the dispute between the petitioner and

himself about the alleged encroachment over plot No. 13.

The said application was strongly opposed by the

petitioner by filing reply, on the ground that plot No.

13 has already been measured and demarcated by the

Officer of the Town Planning, Aurangabad on 13th October,

1998 and it was noticed that the petitioner had

constructed a compound wall by encroaching upon plot No.

13 on the portion shown in yellow colour in the

measurement map. It was stated that the law of

limitation would come in the way of respondent No. 1 in

claiming the alleged encroached portion of land out of

plot No.13. Therefore, the application for appointment

of the Court Commissioner to carry out measurement of

plot No. 13 again in order to verify the encroached

portion of land is required to be rejected.

5. The learned Trial Judge considered the

pleadings of the parties, heard their respective

Advocates and after considering the case law cited on

behalf of respondent No.1 in support of his claim for

appointment of City Survey Officer as a Court

Commissioner for measurement of the disputed property,

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allowed the application (Exh-34) as per the impugned

order.

6. The learned Advocate for the petitioner submits

that since the suit itself is not maintainable as it is

ex facie barred by the law of limitation, there was no

point in appointing the Court Commissioner to measure

the disputed plots and consider the report of the Court

Commissioner. Relying on the unreported judgment of

this Court in the case of Ramkrishna Santu Kakad Vs.

Raojee Sahadu Kakad and another in Writ Petition No.

2749 of 2012, decided on 4th March, 2013, he submits that

the issues are yet to be framed in the above numbered

suit and therefore, the application for appointment of

Court Commissioner for measurement of the disputed plots

would be premature. He further submits that the Court

Commissioner cannot be appointed for collection of

evidence.

7. As against this, the learned Advocate for

respondent No. 1 submits that the issue of limitation

cannot be decided at the initial stage of the suit since

it is a mixed question of law and facts. He submits

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that the averments made in the plaint sufficiently show

that the suit is within limitation. He then submits

that when there is a dispute about the boundary in

respect of the landed property, it is well settled that,

it has to be resolved by appointing an expert as Court

Commissioner for final and effective adjudication of the

dispute between the parties. In support of this

contention, he relied on the judgments in the cases of

Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar 2010

(3) Mh.L.J. 956 and Kolhapuri Bandu Lakade Vs. Yallappa

Chinappa Lakade, deceased, through Pooja @ Poojari Y.

Lakade and others 2011 (3) Bom.C.R. 807. He submits

that the learned Trial Judge has rightly considered the

controversy between the parties and rightly ordered

appointment of the City Survey Officer as Court

Commissioner for measurement of the respective plots.

He supports the impugned order and prays that the writ

petition may be dismissed.

8. So far as the issue of limitation is concerned,

it would be sufficient to say that it being a mixed

question of law and facts, cannot be decided at the

initial stage of the suit without recording the evidence

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of the parties. Moreover, from the averments made in

the plaint, it is prima facie clear that the suit is

within limitation. However, the issue of limitation

would be open for being agitated by the petitioner

before the Trial Court at the appropriate stage.

9. In the cases of Kolhapuri Bandu Lakade (supra)

and Yeshwant Bhaduji Ghuse (supra), it has been held

that when there are boundary disputes and the disputes

about the identity of the lands, the Court should order

local investigation under Order-XXVI Rule 9 of the Code

by appointing the Court Commissioner. It has been

further held that in case of a dispute about demarcation

of lands, it would be appropriate to direct

investigation by a Court Commissioner under Order-XXVI

Rule 9 of the Code, which would be necessary for just

decision of case. To ascertain whether defendants have

encroached upon the suit property or not, the Court

Commissioner would assist in arriving at a just

decision. In the case of Kolhapuri Bandu Lakade (supra),

there is a reference of a number of judgments delivered

by the Hon'ble the Supreme Court and the Bombay High

Court wherein the appointment of Court Commissioner for

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local investigation under Order-XXVI Rule 9 of the Code

for resolving the disputes as to boundaries or identity

of lands has been justified.

10. In the case of Ramkrishna Santu Kakad (supra),

cited on behalf of the petitioner, it is observed that

the Court Commissioner cannot be appointed for

collecting evidence. In that case, the dispute was

relating to the existence of way. In the present case,

the dispute is not in respect of existence of way. It

relates to the alleged encroachment by the petitioner

over plot No. 13 belonging to respondent no.1. For

resolving such type of disputes, the local investigation

by the City Survey Officer would be very useful for

deciding the controversy between the parties finally and

effectually. Moreover, in the case of Ramkrishna Santu

Kakad (supra), reliance was placed on the case of Sanjay

Namdeo Khandare Vs. Sahebrao Kachrau Khandare and others

2001 (2) Mh.L.J. 959, wherein the appointment of the

Court Commissioner was sought for the purpose of finding

out as to who was in actual possession of the suit land.

In that view of the matter, it was held in that case

that the Court Commissioner cannot be appointed for

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collecting evidence. In the present case, the

appointment of the Court Commissioner has been sought to

ascertain the boundaries of the plots of the parties and

to verify whether the petitioner has encroached upon

plot No. 13. In view of these distinguishing facts, the

judment in the case of Ramkrishna Santu Kakad (supra)

would be of no assistance to advance the case of the

petitioner.

11.

Respondent no.1 has prayed for inspection of

the disputed property through Court Commissioner vide

Order XXXIX, Rule (7)(1)(a) of the Code. As per Rule

8(1) of the said Order, an application by the plaintiff

for an order under Rule 7 may be made at any time after

institution of the suit. In view of this provision, the

application (Exh.34) cannot be said to be premature.

12. Considering the controversy involved in the

above numbered suit, the appointment of the City Survey

Officer as the Court Commissioner would be essential for

resolving it finally and effectually. The learned Trial

Judge has rightly considered the facts of the case and

rightly allowed the application (Exh-34). I do not find

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any reason to interfere with the said order. Hence, the

order:-

O R D E R

(i) The Writ Petition is dismissed.

(ii) The parties shall bear their own costs.

(iii) The Rule stands discharged accordingly.

Sd/-

[SANGITRAO S. PATIL] JUDGE

npj/wp8608-2012