Bombay High Court
Manjulabai Wd/O Dadaji Deotale ... vs Pandurang S/O Abaji Deotale And ... on 9 August, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 118 of 2016
1. Manjulabai widow of Dadaji
Deotale,
aged 78 years,
occupation - Agriculturist,
2. Bapuji son of Dadaji
Deotale,
aged 56 years,
occupation - Agriculturist,
3. Nathu son of Dadaji
Deotale,
aged 53 years,
occupation - Agriculturist,
4. Sheshrao son of Dadaji
Deotale,
aged 50 years,
5. Sanjay son of Dadaji
Deotale,
aged 45 years,
all residents of Besa,
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Post Bhalar,
Tq. Wani, Distt. Yavatmal.
6. Geeta wife of Vitthal Nimkar,
aged 38 years,
occupation - Agriculturist,
resident of Dewala, Post-Mardi,
Tq. Maregaon,
Distt. Yavatmal. ..... Appellants
Plaintiffs
Versus
1. Pandurang son of Abaji Deotale,
aged 66 years,
occupation - Agriculturist,
2. Vitthal son of Abaji Deotale,
aged 63 years,
occupation - Agriculturist,
both residents of Besa,
Post Bhalar,
Tq. Wani, Distt. Yavatmal. ..... Respondents
Org. Defts.
*****
Mr. U. J. Deshpande, Adv., for the appellants.
Mr. K. M. Kuthe, Adv., for respondents.
*****
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CORAM : A.S. CHANDURKAR, J.
Date : 09th August, 2017
ORAL JUDGMENT:
01. Admit on the following substantial question of law:-
"The appellate Court having found that the Surveyor did
not carry out joint measurement of Gat Nos. 77 and 78,
whether it was obligatory on the part of the appellate
Court to have directed the fresh measurement in
exercise of powers under provisions of Order-XXVI, Rule
9 of the Code of Civil Procedure Code, 1908?"
Heard finally with consent of learned counsel for the parties.
02. The appellants are the legal heirs of original plaintiff who
had filed a suit for possession of encroached land. It is the case of the
original plaintiff that he was the owner of field Gat No. 77 admeasuring
1 hectare 27 Are and the defendants were the adjoining field owners of
Gat No. 78 that was admeasuring 38 Are. The plaintiff got his land
measured and noticed that there was an encroachment to the extent
of 3 Are land. Hence, aforesaid suit came to be filed.
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03. The defendants took the stand that they had measured their
land, but had not committed any encroachment. They denied having
committed any encroachment.
04. The trial Court after considering the evidence on record held
that the measurement done by the Taluka Inspector of Land Records
on 24th December, 2004 was correct and on that basis, it was proved
that the defendants had encroached land to the extent of 3 Are. The
suit accordingly was decreed.
05. The appellate Court after re-appreciating the evidence found
that there was no joint measurement of Gat Nos. 77 and 78. The
Taluka Inspector of Land Records had only measured Gat No. 77. It,
therefore, set aside the judgment of the trial Court and dismissed the
suit.
06. Shri U.J. Deshpande, learned counsel for the legal heirs of
the plaintiff, submitted that the trial Court has rightly found that the
defendants had committed encroachment to the extent of 3 Are land.
Though the Taluka Inspector of Land Records had measured Gat No.
77, he had noticed that there was an encroachment to the extent of 3
Are land. According to him, the appellate Court after noticing that only
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Gat No. 77 had been measured ought to have appointed a
Commissioner for having both the lands measured. He submitted that
appellate Court instead of dismissing the suit ought to have
determined the actual extent of encroachment.
07. Shri K. M. Kuthe, learned counsel for the respondents,
supported the impugned judgment. According to him, the burden to
prove encroachment was on the plaintiffs and having failed to do so, it
was not open for them to now urge that the joint measurement ought
to have been taken. He, therefore, submitted that the appellate Court
rightly allowed the appeal.
08. Having heard the learned counsel on the aforesaid
substantial question of law and having perused deposition of Taluka
Inspector of Land Records at Exh.35 and the map prepared by him at
Exh.36, I find that in absence of joint measurement of both the
adjoining lands, it would not be possible to determine the extent of
encroachment, if any. Though the trial Court referred to the decision
in Vijay Shrawan Shende & others Vs. State of Mah. [2009 (5)
Mh.L.J. 279], it did not notice that only Gat No. 77 had been measured.
The appellate Court despite noticing this failed to appoint a
Commissioner for determining the exact extent of encroachment. I,
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therefore, find that in the facts of the present case, the course as is
required to be followed in such matters and as laid down in the case of
Vijay Shrawan Shende & others [supra] needs to be followed. The
substantial question of law is accordingly answered in favour of the
appellants.
09. Hence, the following order is passed :-
ORDER
[a] Judgment dated 28th October, 2014 passed in
Regular Civil Appeal No. 46 of 2012 is quashed
and set aside.
[b] The proceedings are remanded to the trial Court
to enable it to appoint a Cadestal Surveyor as
Court Commissioner for determining the extent of
encroachment in the light of pleadings of the
parties. The trial Court shall follow the course
prescribed in the decision in Vijay Shrawan
Shende & others Vs. State of Mah. [2009 (5)
Mh.L.J. 279].
[c] The plaintiff shall initially bear the costs of the
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Commissioner. In case it is found that the
defendants have committed encroachment, it
would be open for the trial Court to appropriate
the expenses of the Court Commissioner.
[d] The parties shall appear before the trial Court on
21st August, 2017 to enable the Court to proceed
further in the matter. It is made clear that the
suit shall be decided on its own merits without
being influenced by any observations made in this
order.
10. Appeal is allowed in aforesaid terms. No costs.
Judge
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