Bombay High Court
Yashwant Bhanudasrao Khose And ... vs Namdeo Dharu Gore And Others on 26 July, 2017
Bench: R.V. Ghuge
20_WP498516.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4985 OF 2016
1. Dr. Yashwant Bhanudasrao Khose
Age: 53 years, Occu.: Doctor and Agri.
2. Ujjwala Yashwant Khose
Age: 50 years, Occu.: Agri and Household,
Both R/o Shviaji Chowk, Beed,
Tq. & Dist. Beed. ..PETITIONERS
VERSUS
1. Namdeo Dharu Gore
Age: 68 years, Occu.: Agri.,
R/o Ashok nagar, Mominpura,
Beed, Tq. & Dist. Beed.
2. Jagdish Dharu Gore
Age: 65 years, Occu.: Agri.,
R/o Narsingh Nagar, Barshi Road,
Beed, Tq. & Dist. Beed.
3. Lahu Maruti Muluk
Age: 58 years, Occu.: Agri.,
R/o Ashok Nagar, Beed,
Tq. & Dist. Beed.
4. Shrimant Maruti Muluk
Age: 56 years, Occu.: Agri.,
R/o Ashok Nagar, Beed,
Tq. & Dist. Beed.
5. Raghu Appa Gore
Age: 58 years, Occu.: Agri.,
R/o Narsingh Nagar, Barshi Road,
Beed, Tq. & Dist. Beed.
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6. Maruti Appa Gore
Age: 55 years, Occu.: Agri.,
R/o Narsingh Nagar, Barshi Road,
Beed, Tq. & Dist. Beed.
7. Suman Navnath Hajare
Age: 48 years, Occu.: Agri. and Household,
R/o In fornt of Hotel Gulmohar,
Naringh Nagar, Barshi Road,
Beed, Tq. & Dist. Beed.
8. Shaikh Janemiya Momin Abdul Jagtap
Age: 53 years, Occu.: Business,
R/o Mominpura, Beed, Tq. & Dist. Beed.
9. Subhadrabai Ashruba Jagtap
Age: 73 years, Occu.: Household,
R/o Mahatmaphule Nagar,
In front of Gurunanak Vidhyalaya,
Beed, Tq. & Dist. Beed. ..RESPONDENTS
....
Mr. V.P. Sawant, Advocate for petitioners.
Mr. N.L. Jadhav, Advocate for respondents.
....
CORAM : RAVINDRA V. GHUGE, J.
DATED : 26th JULY, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioners are aggrieved by the order dated 05 th February, 2016
by which application Exhibit 47 filed by the petitioners - original plaintiffs
seeking appointment of the Court Commissioner, has been rejected.
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3. I have considered the submissions of the learned Counsel for the
respective sides. Mr. Jadhav, learned Counsel appearing on behalf of the
respondents who are original defendants, has strenuously supported the
impugned order and submits that this petition be dismissed with costs.
4. There is no dispute that the plaintiffs have filed Regular Civil Suit
No. 325 of 2013 for seeking perpetual injunction against the defendants. It is
equally undisputed that there was an earlier measurement carried out in
October 2010. All the defendants in their written statements have questioned
the said measurement on the ground that none of them were issued with any
notice and none had an opportunity of participating in the measurement
exercise. The measurements are therefore denied.
5. The Trial Court by a detailed order dated 03 rd April, 2014 has prima
facie concluded that the plaintiffs are in possession of the suit property
admeasuring 1H 46 ½ R in land Survey No. 97/A/1 situated at Beed Taraf
Pingale, Dist. Beed. While passing the said order, the Trial Court has recorded
the contentions of the defendants based on their written statements. Most of
the defendants have said that there were no internal bandhs, though lands of
the plaintiffs as well as all the defendants, fall in Survey No. 97/A/1 which
subsequently underwent further division and have sub-divided in Survey
Nos.97/A/1 and 97/AA/2. The land purchased by the plaintiffs is in Survey No.
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97/A/1 and the lands of the defendants are in Survey Nos. 97/AA/2.
6. It appears prima facie that there are no disputes as regards the
boundaries. However, the defendants contend that some of the defendants are
the owners of the pot hissa and there were no internal bandhs within Survey
No.97/A/1. In the face of these facts, it would really be difficult either for the
plaintiffs or even for the defendants to conclude as to which are the boundaries
of their own portion of lands in Survey Nos. 97/A/1 and 97/AA/2. The internal
bandhs are indicators of the bondaries between the agricultural lands owned by
the respective owners and without such bandhs, it would be difficult even for
the landlords to identify their exact boundaries.
7. Considering this case from this angle and keeping in view that the
Court Commissioner was not appointed earlier in the pending suit, the Trial
Court could have directed the measurement of the entire lands falling in both
the survey numbers since it would cover the lands owned by the plaintiffs as
well as the defendants. It is crystalised law that when there is any issue as
regards the boundaries, it is always beneficial to have the joint measurement of
the entire lands.
8. Mr. Jadhav, learned Counsel has submitted that this Court should be
slow in interfering with the order passed by the Trial Court in its writ
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jurisdiction. There can be no debate on this issue in the light of the law laid
down by the Hon'ble Apex Court in the matter of Syed Yakoob Vs. K.S.
Radhakrishnan and Others AIR 1964 SC 447 and in the matter of Surya Dev
Rai Vs. Ram Chander Rai (2003) 6 SCC 682. However, when an order
appears to cause injustice to the parties and appears to be perverse, this Court
could exercise its writ jurisdiction.
9. The Trial Court again specifically recorded in its order on granting
injunction under Order 39 Rule 1 of the Code of Civil Procedure that the lands
of the plaintiffs and the defendants all fall in two sub-divided survey numbers
and there are further co-sharers who have purchased the pieces of lands,
coupled with the categoric observations that there were no internal bandhs in
the said survey numbers. If by the joint measurement of the lands, the exact
boundaries of the land owners could be fixed, it would surely assist the Trial
Court in adjudicating upon the pending suit. Without the internal bandhs and
without marking of boundaries, each of the land owners would be susceptible
and vulnerable to the internal disputes as regards their boundaries.
10. It is on considering this case on these counts, I find that ends of
justice would have been achieved if the Trial Court would have allowed Exhibit
47.
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11. Considering the above, this petition is allowed. The impugned order
dated 05th February, 2016 is quashed and set aside. Application Exhibit 47 is
allowed only to the extent of the appointment of the Deputy Superintendent of
Land Records as Court Commissioner for measuring the lands falling in Survey
Nos. 97/A/1 and 97/AA/2, which would cover all the lands owned and
possessed by the plaintiffs as well as the defendants.
( RAVINDRA V GHUGE, J. )
SSD
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