Mannalal Ratanlal Mistri vs Rajesh Bhikchand Sonwane
2017 Latest Caselaw 5266 Bom

                                                                                        11_WP15816.odt


         
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                              WRIT PETITION NO. 158 OF 2016

Mannalal Ratanlal Mistri (Rajput)
Age: 60 years, Occu.: Retired,
R/o Najar Galli, Opposite to Dulha Dulhan,
Tilak Road, Aurangabad.                                             ..PETITIONER
              VERSUS
Rajesh Bhikchand Sonwane
Age: 50 years, Occu.: Business,
R/o Najar Galli, Opposite to Dulha Dulhan,
Tilak Road, Aurangabad.                                             ..RESPONDENT

                                       ....
Mr. P.V. Barde, Advocate for petitioner.
Mr. R.M. Joshi, Advocate for respondent.
                                       ....

                                                      CORAM : RAVINDRA V. GHUGE, J.

DATED : 31st JULY, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner is aggrieved by the impugned order dated 06 th

October, 2015 by which an application filed by the petitioner - plaintiff at

Exhibit 23 seeking appointment of the Court Commissioner has been rejected.

1 / 6

11_WP15816.odt

3. The petitioner contends that the issue is as regards the construction

of a building by the defendant in City Survey No. 5181. The plaintiff owns City

Survey No. 5177 admeasuring 100.2 sq. meters. A rough sketch was also placed

on record alongwith the plaint indicating from the dark portion which is at two

places that the defendant is likely to construct his building by encroaching the

part of the area belonging to the plaintiff.

4. The learned Counsel for the defendant submits that the impugned

order rejecting the application for appointment of the Court Commissioner need

not be interfered with considering the fact that the prayers put forth by the

plaintiff are not to the extent of removing the alleged encroachment. Similarly,

the prayers do not indicate that the defendant has or is likely to encroach upon

the land owned by the plaintiff. Reliance is placed upon the judgment of this

Court in the matter of Syed Mushtaque Ahmad Syed. Ismail and Others Vs.

Syed Ashique Ali Khan Haidar Ali 2011 (6) Mh.L.J. 334 and Sanjay Namdeo

Khandare Vs. Sahebrao Kachru Khandare and Others 2001 (2) Mh.L.J. 959.

5. I find from the prayers put forth by the plaintiff that he has

specifically pleaded that the defendant should not be permitted to construct any

part of the proposed house/building in the land or portion thereof belonging to

the plaintiff. The basic pleading that the petitioner - plaintiff apprehends a

2 / 6

11_WP15816.odt

construction by encroachment at the behest of the defendant, appears in the

plaint.

6. The rough sketch placed on record indicates the grievance of the

plaintiff in the darkened portion whereby it is contended that the defendant is

constructing the building by encroaching on the land of the plaintiff.

7. By application Exhibit 23, the plaintiff has prayed for appointment of

a Court Commissioner so as to ensure that the disputed portion and the lands of

both the parties would be scrutinized. The Trial Court has rejected the

application on the ground that the plaintiff desires to collect evidence.

8. It cannot be ignored that the Trial Court has granted temporary

injunction in favour of the plaintiff and after the said order below Exhibit 5 was

subjected to the Miscellaneous Civil Appeal before the Appellate Court, the

defendant has been directed to remove a portion of the wall which was being

erected purportedly in the land owned by the plaintiff. The learned Counsel for

the defendant makes a categorical statement that pursuant to the order of the

Appellate Court, that portion of the wall which appeared to be in the part of the

plaintiff's land, has been completely removed and thereafter, the entire

construction of the three storeyed building has been completed. It is also

canvased that the suit has become infructuous.

3 / 6

11_WP15816.odt

9. In so far as the contention that the suit has become infructuous is

concerned, I do not find that the said contention needs to be accepted for the

reason that merely because the construction has been completed, would not

render the suit infructuous since the plaintiff is claiming an injunction on

construction in the portion of the land which belongs to the plaintiff.

10. In Syed Mushtaque Ahmad Syed Ismail (supra), this Court has set

aside the order of appointment of the Court Commissioner since it disclosed the

direction to the Court Commissioner to report on the aspect of the possession of

the litigating sides and with reference to the construction carried out by the

defendant.

11. In Kolhapuri Bandu Lakade Vs. Yallappa Chinappa Lakade (Decd.

Thru. Pooja @ Poojari Y. Lakade) and Others 2011 (3) All M.R. 599, this

Court, by placing reliance upon Haryana Waqf Board Vs. Shanti Sarup and

Others 2008 (8) SCC 671, has held that if there are disputes as regards the

boundaries, such boundary disputes can be resolved by appointment of a Court

Commissioner who can measure the land of the litigating sides and can fix the

boundaries. This Court has taken a similar view in the matter of Habibkhan

Inauttalakhan and Others Vs. Waman Govind Rathod and Others 2012 (1)

All M.R. 802 and several other judgments.

4 / 6

11_WP15816.odt

12. Reverting to the facts of the case, the defendant has taken a specific

stand that there is no encroachment and there is no dispute about the

boundaries and the wall which appeared in the portion of the land of the

plaintiff has already been removed. Notwithstanding the said contention, it is

obvious from the pleading in the plaint and the sketch map placed on record

that the petitioner apprehends encroachment. If the properties of both the

litigating sides are measured by a competent authority, it would indicate the

boundaries and it would then assist the Trial Court to conclude whether there is

an encroachment. If the defendant has not encroached upon the land of the

plaintiff and if the disputed wall is already removed, it would be very clear

before the Trial Court and the suit can then be adjudicated upon.

13. In the light of the above, I find that the Trial Court should have

allowed application Exhibit 23 for directing the measurement of the plots of

both the litigating sides and for fixing of the boundaries so as to consider the

contention in the plaint that the construction is being erected on the property of

the plaintiff.

14. As such, this petition is partly allowed and the impugned order is

quashed and set aside. Application Exhibit 23 is partly allowed and the Trial

Court shall therefore direct the T.I.L.R. to measure the plots/properties of both

5 / 6

11_WP15816.odt

the litigating sides at issue and fix the boundaries. The Trial Court shall issue

necessary directions on Exhibit 23 to the T.I.L.R. and shall also decide the

charges to be paid by the plaintiff. Such directions and other modalities shall be

worked out within three weeks from today and the T.I.L.R. then could be

granted time of six weeks for implementing the directions of the Trial Court.

15. Rule is made partly absolute in the above terms.

( RAVINDRA V GHUGE, J. ) SSD

6 / 6