Bombay High Court
Suresh Madanlal Agrawal vs Ratnakar Govind Ranade And Others on 21 August, 2017
Bench: S.P. Deshmukh
1 WP-8183.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 8183 OF 2016
Suresh Madanlal Agrawal,
Age 63 years, occup. Business,
R/o House No. 3071/72,
Lane no.3 (Agra Road),
Dhule 424 001 ... Petitioner
versus
01. Ratnakar Govind Ranade,
Age 71 years, occup. Business,
R/o 76, Arpan, Vaibhav Nagar,
Dhule
02. Dr. Rajesh Ratnakar Ranade,
Age 43 years, occup. Medical
Practitioner, r/o 76, Arpan,
Vaibhav Nagar, Dhule
03. The Municipal Commissioner,
Dhule Municipal Corporation,
Dhule
04. The Town Panner,
Dhule Municipal Corporation,
Dhule
05. Ravindra Madanlal Agrawal,
age 62 years, occup. Business,
R/o House No. 3071/72,
Lane No. 3 (Agra Road),
Dhule 424 001 .. Respondents
-----
Mr. P. S. Paranjape, Advocate for petitioner
Mr. Y. G. Gujarathi, Advocate for respondent no.2-caveator
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2 WP-8183.16.doc
CORAM : SUNIL P. DESHMUKH, J.
DATE : 21st August, 2017
ORAL JUDGMENT
1. Rule. Rule made returnable forthwith. Heard the learned
counsel for parties finally by consent.
2. Petitioner-original plaintiff is before this court purportedly
aggrieved by order dated 09-06-2016 on Exhibit - 59 in special
civil suit no. 114 of 2011, whereunder request of the petitioner
to have appointment of court commissioner to measure
property bearing C.T.S. No. 1226 as referred to in Exhibit - 59
particularly in paragraph 4 thereof has been rejected by the
Joint Civil Judge, (Senior Division), Dhule.
3. The court had considered that it is a cardinal principal, an
appointment of court commissioner is not permissible for
collection of evidence and further that there is no boundary
dispute, going by the pleadings of the parties. The court has
adverted to that the plaintiff's case is about construction by
defendant no. 1 and 2 being an encroachment in the form of
wall, and to bring-forth said situation, appointment of court
commissioner had been sought. The court further adverted to
that there is no dispute between the parties in respect of wall
situated between plaintiff's and defendants' properties and also
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that entire building is not the suit property. The court found
commission sought is not conducive for the purpose of suit and
as such rejected the application.
4. Mr. Paranjape, learned counsel for petitioner contends that
whole the property had been purchased by petitioner in the year
2003-2004, including northern side wall which is claimed to
have been encroached upon by respondents-defendants and as
such, appointment of court commissioner would be necessary for
bringing forth the encroachment. Generally, in the matters of
encroachments, the decisions hitherto would show that such an
application deserves to be granted.
5. On the other hand, Mr. Y. G. Gujarathi, learned counsel
appearing on behalf of respondent no. 2 submits that the court
had declined the request of the petitioner for all right reasons.
Respondent no. 2 has disputed the claim of the plaintiff of him
being exclusive owner of the northern side wall of his property.
He further purports to refer that as a matter of fact, the
petitioner - plaintiff had given no objection to the plans
submitted by defendants to local authority for construction over
defendants' property. He, therefore, submits that primary
burden liable to be discharged about entire northern wall is of
his ownership is entirely on the petitioner and unless and until
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he is in a position to prove the same, the appointment of court
commissioner is unlikely to achieve purpose. He further submits
that the construction as referred to has already been complete
and whether it tantamounts to encroachment would not be able
to be proved unless the primary burden referred to above is
discharged by the petitioner-plaintiff. He thus submits that writ
petition does not carry any substance and deserves to be
dismissed.
6. Having heard learned counsel as aforesaid, plaintiff's case
appears to be to remove the wall constructed on northern side
of property bearing C.T.S. No. 1226 belonging to petitioner -
plaintiff and to reconstruct the same as had been subsisting and
also to issue mandatory injunction in case of failure of
defendants to remove the said wall, authorizing plaintiff for
removal of the same and by granting injunction against
defendants and to pay damages of Rs.5,00,000/- to the plaintiff
- petitioner.
7. Petitioner appears to claim exclusive ownership of the wall
stated to be of 2 ft. in width situated on northern side of C.T.S.
No. 1227. It also emerges that construction by defendant has
already been completed. In the circumstances, until the
petitioner - plaintiff discharges his primary burden about 2 ft.
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wide wall on northern side of said property exclusively has been
of his ownership, the measurement as sought might not carry
any meaningful purpose. This is one more aspect in addition to
the ones dealt with by the trial court while considering
application Exhibit - 59 may be relevant.
8. It is being apprised of that plaintiff's evidence has been
closed and respondents - defendants are to commence their
evidence.
9. Having regard to aforesaid, at this stage, it does not
appear to be a case wherein any order is liable to be passed
reversing the order of the trial court.
10. Writ petition, as such, is not being entertained and is
dismissed. However, it would be open for the petitioner-plaintiff
to make an appropriate application before the trial court as and
when it is deemed that the situation with reference to the
evidence warrants the same and in case of such an application,
the same be considered and decided on its own merits.
11. Rule stands discharged.
SUNIL P. DESHMUKH,
JUDGE
pnd
