Bombay High Court
Purushottam S/O. Sambhashiv ... vs Purushottam S/O. Mahadeorao ... on 7 July, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 202 of 2016
Purushottam son of Sambhashiv
Chaudhari
.....Org. Plaintiff :
1. Smt. Godavari Purushottam Chaudhari
aged about 69 years,
occupation - Agriculturist,
2. Raju alias Piteshwar Purushottam
Chaudhari,
aged about 48 years,
occupation - Service,
3. Pravin Purushottam Chaudhari,
aged about 44 years,
occupation - Agriculturist,
4. Yashwant Purushottam Chaudhari,
aged about 37 years,
occupation - Agriculturist,
all residents of Amadi [Harba],
Tq. Warora, Distt. Chandrapur. ..... Appellant.
Versus
Purushottam son of Mahadeorao
Bhendarkar,
aged about 63 years,
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occupation - cultivation,
resident of Amadi [Harba],
Tq. Warora,
Distt. Chandrapur
.....Org. Defendant. ..... Respondent.
*****
Mr. Harish Thakur, Adv., for the appellant.
Mr. Rohit Joshi, Adv., for respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 07th July, 2017
ORAL JUDGMENT:
01. Admit. Heard finally with consent of counsel for the parties
on the following substantial questions of law:-
"1. Whether in absence of any objection being raised
to the exercise of measurement by the
defendant, the appellate Court could have gone
into said question?
2. Whether the appellate Court after finding that the
measurement map at Exh.29 was not prepared in
accordance with law ought to have directed fresh
measurement of the land in question considering
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the fact that the suit was for removal of
encroachment?"
02. The appellant is the original plaintiff who had filed suit for
removal of encroachment coupled with possession and damages. It is
his case that he was owner of Survey No. 34 admeasuring 2 hectares
51 Are, while adjacent property being Survey No. 35 admeasuring 1
hectare 22 Are was owned by the defendant. The plaintiff measured
his land on 24th October, 2002 and found that there was an
encroachment to the extent of 10 Are land. As the defendant did not
remove the encroachment, the aforesaid suit came to be filed.
03. The defendant denied having committed any encroachment.
He asserted that he was in possession of his property admeasuring 1
hectare 22 Are.
04. The trial Court held on the basis of evidence on record that
the plaintiff had proved that the defendant had made encroachment to
the extent of 10 Are land. It relied upon the map at Exh.29 that was
prepared by the surveyor. The appellate Court reversed said decree
by holding that the map at Exh.29 had not been properly prepared and
was liable to be discarded. The suit accordingly was dismissed.
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05. Shri H. V. Thakur, learned counsel for the appellant,
submitted that the appellate Court was not justified in dismissing the
suit for removal of encroachment. According to him, the trial Court on
proper appreciation of the evidence had held that the encroachment to
the extent of 10 Are land at the instance of the defendant was proved.
Exh.29 was the only map that was placed on record. If the appellate
Court was of the view that the measurement was not carried out by
PW 4 in accordance with law, fresh measurement ought to have been
directed. Referring to the judgment of learned Single Judge in Vijay
Shrawan Shende & others Vs. State of Mah. & others [2009 (5)
Mh. L.J. 279], it was submitted that the appellate Court ought to have
followed the course prescribed therein.
06. Shri Rohit Joshi, learned counsel for the respondent,
supported the impugned judgment. According to him, the plaintiff
having failed to prove the encroachment, the dismissal of the suit was
justified. He submitted that trial Court committed an error by relying
upon the map at Exh.29. This error was corrected by the appellate
Court.
07. Heard the learned counsel for the parties at length and
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perused the impugned judgments.
08. The plaintiff by examining PW 4 sought to bring on record
the encroachment caused by the defendant. On the basis of the map
at Exh.29, it was found that the encroachment was to the extent of 10
Are land. The appellate Court noted that the defendant had not raised
any objection to the measurement and further proceeded to hold that
the actual measurement was not carried out by following the
prescribed procedure. On the basis, the map at Exh.29 was discarded.
09. In Vijay Shrawan Shende & others [supra], the manner in
which dispute with regard to encroachment has to be adjudicated has
been laid down. It has been observed that an endeavour should be
made to appoint a Commissioner who is aware of the relevant
procedure for carrying out the measurement on the basis of which the
proceedings can be adjudicated. In the present case, the appellate
Court after having found that the measurement was not carried out by
PW 4 in accordance with law, ought to directed appointment of a Court
Commissioner for carrying out a fresh measurement at the instance of
the plaintiff. Dismissal of the suit only on that count was not
warranted. A proper report of the Commissioner could have enabled
resolution of the dispute as to encroachment. In the facts of the
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present case, I find that the course as prescribed in the aforesaid
decision deserves to be followed.
10. The substantial question of law as framed at Sr. No.2 is
answered by holding that the appellate Court ought to have directed
fresh measurement in accordance with the law laid down in Vijay
Shrawan Shende & others [supra] after finding that the Exh.29 was not
properly prepared. In the circumstances, the question at Sr. No.1
would not survive.
11. In view of aforesaid, the following order is passed:-
ORDER
[a] Judgment of the appellate Court in Regular Civil
Appeal No. 230 of 2008 dated 6th November,
2015 is quashed and set aside.
[b] The proceedings are remanded to the trial Court
by restoring Regular Civil Suit No. 11 of 2003.
The trial Court shall follow the procedure as
prescribed in paras 41 and 42 of the decision in
Vijay Shrawan Shende & others Vs. State of Mah.
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& others [2009 (5) Mh. L.J. 279].
[c] The plaintiffs shall bear the costs of the Court
Commissioner.
[d] For aforesaid purpose, the parties shall appear
before the trial Court on 7th August, 2017.
12. Appeal is partly allowed in aforesaid terms. No costs.
Judge
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