Arjun Dadaji Khobragade vs Tulshiram Sitkura Bambole
2017 Latest Caselaw 9728 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.

                                               SECOND APPEAL NO.50 OF 2005

                APPELLANT:                                            Arjun   S/o   Dadaji   Khobragade,   aged
                (Ori.                                                 about   47   years,   Occ:   Service     R/o
                Respondent)
                                                      Mahadwadi, Tah. & Distt. - Gadchiroli.
                PLAINTIFF
                                                                                       
                                                                     -VERSUS-

                RESPONDENT:                                           Tulshiram Sitkura Bombole, aged about
                (Ori. Appellant)                                      37   years,   R/o   Mahadwadi,   Tah.   And
                Defendant                             Distt. Gadchiroli.
                                                                                                                       

              Shri  N. R. Bhishikar, Advocate for the appellant.
              Shri V. N. Morande, Advocate for the respondent.



                                                             CORAM: A.S. CHANDURKAR, J.

DATED: DECEMBER 18, 2017.

ORAL JUDGMENT :

1. This appeal filed by the original plaintiff has been

heard on the following substantial question of law:

Whether the Appellate Court was right in refusing to rely upon the report submitted by the Commissioner and his map at Ex.98 shall be the substantial question of law for determination in this Second Appeal?

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2. It is the case of the plaintiff that he had purchased the

land admeasuring 43.5 feet x 25.5 feet for a consideration of

Rs.600/-. Towards the northern side of the plaintiff's house, the

house of the defendant was situated at a distance of 3 feet.

According to the plaintiff, the defendant started construction on

the open piece of land without obtaining necessary permission.

Hence, the suit came to be filed for a declaration that the

defendant had no right to make said construction. As the

defendant completed that construction during the pendency of the

suit, the plaint was amended and prayer for removing that

encroachment was also made.

3. In the written statement, the case of the plaintiff was

denied. It was stated that the construction was in accordance with

law and it was not by encroaching the plaintiff's land.

4. The plaintiff moved an application below Exhibit-21

before the trial Court for having the disputed area measured by the

Court Commissioner. The defendant gave his no objection and

accordingly, the District Inspector of Land Records was appointed

to measure the land in dispute. Pursuant thereto, the measurement

took place and after the report was filed, the defendant raised

objection to that measurement. The trial Court accepted the report

of the Commissioner and decreed the suit. The defendant was

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directed to remove the construction in question. In the appeal

filed by the defendant the appellate Court came to the conclusion

that the map at Exhibit-98 was not prepared as per prescribed

procedure. On that count, the appeal was allowed by setting aside

the judgment of the trial Court. Hence, the plaintiff has filed this

appeal.

5. After hearing the respective Counsel alongwith

objection raised to the same and the deposition of the Court

Commissioner at Exhibit-97, it is found that it is only the plaintiff's

area which was got measured. Various admissions given by the

Court Commissioner indicate that the document of title was not

taken into consideration. Similarly, from the said map, the

Commissioner could not identify the boundaries of the plaintiff's

plot. The observations of the appellate Court in paragraph Nos.15

and 16 of the judgment, therefore, appear to be justified in the

light of evidence on record.

6. However, at the same time, if the appellate Court had

found that the Commissioner had not measured the disputed land

by using the proper method, it should have directed fresh

measurement so as to resolve the question regarding

encroachment. The plaintiff could not be blamed for the

Commissioner not carrying out the commission properly. I find

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that in the facts of the present case, the proceedings deserve to be

remanded to the trial Court to determine the question of

encroachment as per the procedure laid down in the case of Vijay

Shrawan Shende and others Vs. State of Maharashtra and others

2009(5) Mh.L.J. 279.

7. The substantial question of law as framed is answered

by holding that though the appellate Court was right in refusing to

rely upon the Commissioner's map at Exhibit-98, it ought to have

remanded the proceedings to the trial Court for fresh

measurement.

8. In view of aforesaid, the following order is passed:

(1) The judgment of the trial Court in Regular Civil Suit

No.15/1992 as well as the judgment of the appellate Court in

Regular Civil Appeal No.37/2002 are quashed and set aside.

(2) The proceedings in Regular Civil Suit No.15/1992 are

restored. The trial Court shall decide the suit afresh in the light of

observations in the judgment in the case of Vijay Shrawan Shende

(supra).

(3) The parties are at liberty to amend their pleadings and

lead further evidence if they so desire. For said purpose, the

parties shall appear before the trial Court on 15-1-2018. As the

suit is of the year 1992, the proceedings are expedited and suit

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shall be decided on its own merits and in accordance with law by

the end of October, 2018.

(4) The second appeal is allowed in aforesaid terms. No

costs.

JUDGE

/MULEY/