Sanjay Shankar Umale vs Ruprao Atmaramji Babade Akola
2017 Latest Caselaw 9639 Bom

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                                       1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 561 of 2004


 Sanjay Shankar Umale,
 aged about 38 years,
 occupation - Agriculturist,
 resident of Babhuulgaon
 [Jahagir].                                     .....           Appellant
                                                              Org.Deft.


                                   Versus


 Shri Ruprao Atmaramji Babade,
 aged - adult,
 occupation - service,
 resident of Babhulgaon [Jahagir],
 Tq. & Distt. Akola.                            .....        Respondent
                                                             Org.Plff.


                                  *****
 Mr. S. G. Joshi, Adv., for the Appellant.

 Mr. U. N. Vyas, Adv., for the respondent.

                                    *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   14th December, 2017

 ORAL JUDGMENT:





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01. This appeal at the instance of the original defendant has

been heard on the following substantial question of law:-

"Whether the encroachment could be proved on the basis of the map and the evidence of PW 3 when the measurement was not carried out in accordance with the procedure prescribed by law?"

02. The respondent is the original plaintiff who had filed a suit

for removal of encroachment and delivery of possession. According to

the plaintiff, he is the owner of Plot No. 28 admeasuring about 150

square meters. The defendant is the owner of adjoining Plot No.27. It

is the case of the plaintiff that the defendant committed encroachment

to the extent of 39 square feet. Though notice was issued to the

defendant, the same was not removed. Hence, the suit came to be

filed.

03. In the Written Statement, it was denied that any such

encroachment was made. It was pleaded that the construction was

within the boundaries of Plot No. 27.

04. The plaintiff examined himself and his witnesses which

included an Architect as PW 3. This witness prepared a map at Exh.42

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showing encroachment to the extent of 39 sq. ft. The defendant also

examined himself and another witness. The trial Court accepted the

map at Exh.42 prepared by the PW 3 and decreed the suit. The

appellate Court confirmed that decree.

05. It is submitted by Shri S. G. Joshi, learned counsel for the

defendant, that the map at Exh.42 was prepared without giving due

notice to the defendant and without following the prescribed

procedure. He submitted that this aspect was clear from the

deposition of said witness. Merely because said witness was a Govt.

Architect, it did not follow that his evidence should be accepted. He,

therefore, submitted that the suit was liable to be dismissed.

06. Shri U. N. Vyas, learned counsel for the original plaintiff,

supported the impugned judgment. According to him, the map at

Exh.42 was prepared by following the due procedure. The

encroachment was clearly shown and as that map has been accepted

by both the Courts, no interference is called for.

07. I have heard the learned counsel for the parties at length

and I have perused the record of the case. On perusal of the

deposition of PW 3 below Exh.30, it can be seen that the said witness

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had prepared the map at Exh.42. However, in his cross-examination,

he admitted that while measuring the plots in question, the signatures

of adjoining plot owners and witnesses were not obtained. Permanent

marks were not stated in the map. The method which was followed

while carrying out measurement was also not mentioned therein.

The manner in which the extent of encroachment has to be

determined has been laid down in Vijay Shrawan Shende & others

Vs. State of Mah. [2009 (5) Mh.L.J. 279]. In that judgment, a detailed

procedure as to the manner in which the aspect of encroachment has

to be determined has been laid down. Seen in that context, It is clear

that the map at Exh.42 has not been prepared as per the said

procedure. No notice was issued to the defendant and in his absence,

the plots were measured. I find that the aspect of encroachment

deserves to be decided afresh by following the law as laid down in the

aforesaid judgment. The substantial question of law is accordingly

answered by holding that the encroachment has not been proved as

the procedure prescribed by law has not been followed.

08. In view aforesaid, the impugned judgments cannot be

sustained. The judgments passed in Regular Civil Suit as well as in

Regular Civil Appeal are quashed and set aside. The proceedings in

Regular Civil Suit No. 96 of 2002 are remanded to the trial Court for

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fresh adjudication after following the law as laid down in Vijay Shrawan

Shende & others [supra]. For said purpose, the parties shall appear

before the trial Court on 8th January, 2018. The parties are at liberty

to amend their pleadings and lead further evidence if they so desire.

As the suit is of the year 2002, the proceedings are expedited. The

suit shall be decided by the end of December, 2018. The trial Court

shall not be influenced by any observations made in this judgment and

suit shall be decided on its own merits.

09. Appeal is allowed in aforesaid terms. No costs.

Judge

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