Ashwin S/O Odhavjibhai Thakkar vs Muktalal @ Murlidhar S/O Budhaji ...
2017 Latest Caselaw 2874 Bom

26-J-AO-52-16                                                                                         1/10


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

                      APPEAL AGAINST ORDER  NO.52 OF 2016


Ashwin s/o Odhavjibhai Thakkar 
aged   years, Occ. Service, 
R/o Near V.M. Company, Ram Nagar, 
Behind Rajlaxmi Complex, Gondia, 
Tah. And Dist. Gondia.                                                     ... Appellant. 

-vs-

Muktalal @ Murlidhar s/o Budhaji Kawale, 
aged about 74 years, 
Occ. Pensioner, 
R/o Ring Road, Kuber Bhawan, 
Manorharbhai Ward, Gondia, 
Tah. And Dist. Gondia.                                                     ... Respondent.  

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Shri I. N. Chaudhari,  Advocate for appellant. 
Shri J. J. Chandurkar, Advocate for respondent. 
----------------------------------------------------------------------------------------------------------

                CORAM  :  DR (SMT) SHALINI PHANSALKAR-JOSHI, J. 

DATE : JUNE 07, 2017

Oral Judgment :

This is an appeal preferred against the order dated 11/12/2012 in

RCA No.106/2012 passed by the Principal District Judge, Gondia thereby

remanding the suit for extending an opportunity to the appellant therein to

lead evidence in order to establish the location of the properties purchased

by the appellant and the wife of the respondent.

The facts, which are relevant, to decide this appeal are as follows.

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Respondent herein has filed a suit for prohibitory and mandatory

injunction contending inter alia that he is the owner of the suit plot bearing

No.10 situated at Khasra No.195/9, T.S.K. No.26 at Katangikala, Dist.

Gondia. According to him, he has purchased the said plot from Mangalabai

Damodar Bawne and Mangalabai had purchased it from Laxman Gangadhar

Bedekar. The original plot was admesuring 60' x 40' but as the State

Government has acquired northern side of the said plot admeasuring 1400

sq. ft Gangadhar Laxman remained in possession of only 1000 sq. ft. i.e 40'

x 25' which he sold to Mangalabai. At the time of purchase of the plot,

respondent had measured and marked the plot with stones and thereafter

bamboo fencing was erected. However on 20/09/2007 respondent noticed

that the appellant herein had made encroachment on the said plot and

thereby caused obstruction to his possession. Respondent accordingly got

the suit plot inspected and measured through TILR and thereafter filed the

suit for prohibitory and mandatory injunction.

2. Appellant herein resisted the suit vide written statement at

Exhibit-22 raising dispute relating to the location and area of the suit plot

and also about the boundaries of the said plot. According to the appellant,

after puchjase of the plot No.10 by Gangadhar, the entire plot was acquired

by the Government for construction of the road and no land remained with

Gangadhar. It was contended that though the sale deed was executed by

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Gangadhar in favour of Mangalabai, and Mangalabai executed sale deed in

favour of respondent, in fact possession of the property was not given as no

property was in existence. According to the appellant, his wife Jayaben had

purchased the piece of land from Gat No.198/2 and Gat No.199,

admeasuring 395 sq. meters from one Smt Khairunnisa w/o Javed Iqbal Khan

in the year 2007 and since then she is in possession of the same. She had

also converted the said land for non-agricultural use, after getting it

measured by TILR. She had got the plan sanctioned from Municipal Council

of Gondia for construction and development. As per said plan, there is a

15 feet wide lane towards southern side of the said plot and thereafter there

is open space and then there is Ring road. Thus according to the appellant,

there is no question of the appellant or his wife making any encroachment

and hence the suit filed by the respondent for prohibitory and mandatory

injunction was devoid of merits and was liable to be dismissed.

3. In support of their respective contentions, both the parties led

evidence on record. Respondent examined retired T.I.L.R. by name Manik

Warkade as PW-2 whereas appellant examined Chandrakumar as DW-3 who

had measured the land.

4. On consideration of their evidence, in paragraph No.18 of its

Judgment, the trial Court held that PW-2 Manik Warkade has not carried

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out proper measurement and the map (Exhibit-75) prepared by him cannot

be relied upon as he has carried out measurement without locating a single

permanent mark and simplicitor believing the respondent-plaintiff about

earlier existence of permanent mark at particular place. It was further held

that it was the reason why T.I.L.R might had refused to sign on the map.

Thus trial Court found that the map prepared by PW-2 and filed at Exhibit-75

cannot be relied upon to show the alleged encroachment made by the

appellant on the plot belonging to the respondent. As a result, the trial Court

dismissed the respondent's suit.

4. Against the said judgment and order, respondent preferred RCA

No.106/2012 and vide judgment and order dated 11/12/2012 the Appellate

Court was pleased to observe in paragraph 13 that as the real controversy

between the parties was, whether the property in possession of the present

appellant is part of Khasra No.195/9 and unless this fact is shown, the

respondent cannot claim any relief. It was further held that in order to

resolve the controversy regarding the existence and location of plot No.10 it

is necessary for the respondent-plaintiff to bring before the Court, the proper

measurement map. Accordingly liberty was given to respondent-plaintiff to

apply to the trial Court to appoint the Commissioner for measurement of all

the properties for establishing the locations of the properties of both the

parties. Learned Principal District Judge thus remanded the matter to the

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trial Court for extending opportunity to the respondent-plaintiff in order to

establish the location of the property.

This order of the learned District Judge is challenged in this

appeal by learned counsel for the appellant-defendant contending that the

suit filed by the respondent was simplicitor for prohibitory and mandatory

injunction. He has not claimed the relief of declaration of his ownership

over the suit plot. The trial court has clearly held that the respondent has

failed to establish even the location of the property and his possession or

ownership over the said property. Hence according to learned counsel for

the appellant, the Appellate Court has clearly committed an error in

remanding the matter to the trial Court and that too for establishing the

location of both the properties. It is submitted that, in spite the opportunity

extended to the respondent to prove his possession or the ownership and also

the location of his property, as he has not done so, there was no substantial

reason to extend one more opportunity to him to do so. Reliance is placed

on the judgment in Chandrarao s/o Hanumantrao Wable vs. Dhondu s/o

Fula Patil 2012 (2) Mh.L.J. 847 to urge that once measurement is already

carried out by the TILR there is no necessity to extend opportunity to the

respondent for re-measurement of the land. According to learned counsel for

appellant therefore the impugned order passed by the trial Court suffers from

illegality and perversity and hence liable to be quashed and set aside.

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5. Per contra, learned counsel for the respondent has supported the

impugned order by submitting that the real dispute between the parties is

relating to the location and boundaries of the two properties, one that of the

respondent and the other that of the appellant's wife. The only way to

establish the location or the boundaries of the properties is the joint

measurement of the said properties. In this case admittedly PW-2 Manik

Wakade, the retired T.I.L.R has measured the property belonging to the

respondent only. However, his measurement was not found to be proper and

correct and trial Court has disbelieved or not relied upon the same. In such

situation, to resolve the controversy, there was no other option before the

Appellate Court but to remand the matter for re-measurement through the

appropriate authority and therefore the impunged order does not warrant

any interference.

6. In view of these rival submissions advanced before this Court and

from the perusal of the impugned judgment of the trial Court, it is clear that

the real dispute between the parties pertains to the exact location of the plot

belonging to the respondent which he has purchased from one Mangalabai

Bawane and the plot which is purchased by the appellant's wife. As suit

pertains to the mandatory and prohibitory injunction, it was necessary for

the respondent to establish his possession over the suit plot which he claims

to have purchased from Mangalabai. The respondent has attempted to do

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so, by getting the said plot measured through PW-2 Manik Warkade.

However the trial Court has rightly found that PW-2 has not carried out

proper measurement as he has carried out the measurement without locating

a single permanent mark but believing and relying on the statement of

respondent alone about the earlier existence of permanent mark at particular

place. The said witness has not even ascertained whether there was such

earlier permanent mark. The trial Court also rightly held that as

measurement carried out and the map drawn by PW-2 was not proper, even

T.I.L.R had refused to sign on the map. Hence no fault can be found if the

trial Court has refused to rely upon the said map to prove the alleged

encroachment on the plot belonging to the respondent.

7. In such circumstances the Appellate Court rightly held that in

order to prove that the respondent is in possession of the suit plot and the

said plot is distinct from the plot purchased by the appellant's wife, the joint

measurement of both the plots was necessary. Accordingly the Appellate

Court in paragraph 13 of the judgment has clearly held that the real

controversy between the parties can be resolved only if it is shown that the

respondent's property is part of Khasra No.195/9 and therefore in order to

resolve the controversy it was necessary to measure not only Gat No.195 but

also 198/2A and 199. As rightly observed by the Appellate Court in the same

paragraph that in order to resolve the controversy regarding existence and

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location of Plot No.10, no evidence was adduced by either side and in

absence of such evidence, no relief can be granted to any of the parties.

Therefore in order to resolve the dispute finally, the Appellate Court thought

it fit to remand the matter back to the trial Court to give an opportunity to

the respondent-plaintiff to lead the evidence by getting the measurement of

the land carried out. In my considered opinion, therefore, no fault can be

found in the impugned judgment and order passed by the Appellate Court.

8. As regards the judgment in case of Chandrarao v/s Dhondu

(supra) relied upon by learned counsel for appellant, the facts of the said

case were totally different because in that case, the measurement was carried

out by TILR who was in-charge of the office at Taluka level. The plaintiff has

not made any grievance about the said measurement. Hence in absence of

such grievance, it was held that the trial Court was not justified in allowing

the application for re-measurement, that too when the recording of the

evidence was almost complete. In the instant case the trial Court has found

that whatever measurement was carried out by PW-2 who is a retired T.I.L.R.

was not at all reliable as he has not done it properly. The respondent-

plaintiff cannot be blamed for the same and therefore joint re-measurement

of the plots belonging to the respondent and appellant's wife had become

necessary.

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9. At this stage, learned counsel for the appellant pointed out that in

cross-examination, respondent-plaintiff had admitted that both the

measurements, taken by PW-2 and DW-3 are correct. The real controversy

between the parties, cannot be resolved merely because the respondent has

stated that both the measurements are correct. Once the trial Court has

disbelieved the same, there is no other option but to go for joint re-

measurement of both the properties.

10. Thus looking at the controversy from any angle, I do not find any

reason for interference in the impugned order of the Appellate Court.

12. Before concluding, one more submission by the learned counsel

for the appellant needs to be taken into consideration. It is submitted by

learned counsel for the appellant that though the matter was remanded to

the trial Court in the year 2012, as on today also the properties are not re-

measured. In view thereof, learned counsel for the respondent submits that

proper steps would be taken as early as possible. It is pointed out that

record and proceedings of the suit, which was called for in this Court is not

yet sent to the trial Court. Therefore it appears that no progress could be

made in the matter.

In view thereof, office is directed to send the record and

proceedings of the suit to the trial Court forthwith. Respondent to take steps

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to comply with the order of the Appellate court, within two weeks on the

receipt of record and proceedings by the trial Court.

With this direction, Appeal stands disposed of with no order as to

costs.

JUDGE

Asmita