Jamirkhan S/O Amir Khan vs Dharamchand S/O Roopchand Sawale ...
2017 Latest Caselaw 3591 Bom

927-J-AO-53-16                                                               1/14


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

                    APPEAL AGAINST ORDER NO.53 OF 2016


Jamir Khan s/o Amir Khan 
Aged about 66 years, Occ. Business, 
R/o Ner, Tahsil Ner, Dist. Yavatmal.              ... Appellant. 

-vs- 

1.  Dharamchand s/o Roopchand Sawala,
aged about 72 years, Occ. Cultivation &
business, R/o. Rukhamani Nagar, School No.5,
In front of Adv. Mahalle, Amravati.

2a. Smt. Talemunnisa w/o. Nasib Khan,
aged about 73 years, Occ. Household 
& Cultivation.

2b. Nasir Khan s/o Nasib Khan Pathan,
aged about 42 years, Occ. Business,

2c. Sau. Rubinabi d/o Nasib Khan,
aged about 40 years, Occ. Household,

2d. Ku. Anjumbi d/o Nasib Khan,
aged about 32 years, Occ. Household,

All (2a) to (2d) R/o. Ambedkar Ward,
Near Police Station, Ner, Tah. Ner
District-Yavatmal

2e. Sau. Fafica Anjum w/o Sheikh Mujjakir,
aged about 46 years, Occ. Household,
R/o. Kajweshwar, Tah-Karanja,
District-Washim.

3. Hanifabi w/o Ghaffar Kachi
(deleted)

4. Sau. Mamtaj w/o Harun Usman,



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 927-J-AO-53-16                                                                       2/14


aged about 47 years, Occ. Household,
R/o. Mubarak Nagar, Arni,
Tah. Arni, District-Yavatmal

5. Sau. Rukhsana w/o Jikkar Yusuf Kachchi,
aged about 49 years, R/o. Mahuli Jahagir,
Tah,. And Distt. Amravati. 

6. Sau. Jaigunnisa w/o Y.D.Bhura,
aged about 51 years, Occ. Household,

7. Ku. Farjana Abdul Ramlani,
aged about 45 years, Occ. Household 

8. Faraque s/o Abdul Gaffar Ramlani,
aged about 44 years, Occ. Business,

9. Ku. Fatma d/o Abdul Gaffar Ramlani,
aged about 40 years, Occ. Household,

10. Sarfaraj Khan Mohammad Khan,
aged about 71 years, Occ. Agriculturist,

11. Mobin Khan Mohammad Khan,
aged about 61 years, Occ. Cultivation,

12. Naim Khan Mohammad Khan,
aged about 58 years, Occ. Cultivation,

All 6 to 12 R/o. Ambedkar Ward, Near
Police Station, Ner, Tah. Ner,
District-Yavatmal...                                  ....   Respondents

Shri Rohit Joshi, Advocate for appellant. 
Shri H. A. Deshpande, Advocate for respondent Nos.2(a to e) and 4 to 12. 


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

                 DATE   :    JUNE 23, 2017 





 927-J-AO-53-16                                                                                3/14


Oral Judgment : 
 

In this appeal a very short question is raised for consideration as

to whether in a suit for removal of encroachment if the plaintiff has

examined Government Surveyor of the Land Records as a witness and his

evidence is not relied upon on the count that measurement of the land

carried out by him was not found to be correct and proper, and hence, if the

suit is dismissed, whether in an appeal against the said judgment and

decree , the first appellate Court can remand the matter for re-measurement

of the said land by Government Surveyor, by following proper procedure?

2] The appellant in the instant case is the original defendant who is

aggrieved by the order of remand of the suit passed by District Judge-3

Yavatmal vide his impugned judgment and order dated 05/07/2016 in

R.C.A. No.32/2007.

3] Brief facts of the appeal, can be stated, as follows :

Respondents herein claimed to be the owners of plot of land,

bearing Survey No.194/3 situate at village Ner Dist. Yavatmal. They had

purchased it from one Ravindra Ganpat Raut for consideration of

Rs.17,000/- on 06/05/1985. One field bearing Survey No.196 was situate

towards the southern side of the said plot. There was a Saw-mill of Gaffar

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Kacchi in that Survey No.196. Gaffar Kacchi leased out the Saw Mill to

Nasibkhan in the year 1978. According to respondents, this Nasibkhan has

encroached upon an area admeasuring 1000 sq. ft gradually on the plot of

respondents. When respondents noticed the said encroachment, they got

the land measured through TILR, who has prepared the map in which the

encroached portion was shown by letters A, B, C, D. The respondents,

therefore, filed a suit before the trial Court for removal of this encroachment

and possession of the encroached portion.

4] Nasibkhan, the appellant herein resisted the suit vide his written

statement Exhibit-16, thereby denying the ownership of the plaintiff over the

said plot of land and further denying the alleged encroachment. According

to him, defendant No.2 - Hanifabai was in possession of the disputed area.

Therefore, defendant No.2 - Hanifabai was impleaded as a party. She

resisted the suit vide her written statement Exhibit-48, thereby denying the

ownership of the plaintiff over the said plot and also denying the alleged

encroachment. According to her, the Saw-Mill of her predecessor was

already in existence on the said plot of land. Hence there is no question of

her making any encroachment. The other defendants in the suit viz.

Defendant nos.3 to 5 and 7 also raised similar contentions denying the

encroachment.

 927-J-AO-53-16                                                                             5/14


5]            On the respective pleadings of the parties, the trial Court framed

issues at Exhibit-156 and one of the issue was whether plaintiff has proved

that the defendant had encroached upon the portion marked A, D, E, F as

shown in the map drawn by the TILR.

6] In support of his case, the Respondent-plaintiff examined himself

and also led the evidence of TILR to prove the map drawn by him, showing

the encroachment. The trial Court, on appreciation of the evidence of

plaintiff and TILR. came to conclusion that the TILR has not adopted the

proper procedure for carrying out the measurement of the disputed area. In

this respect, the trial Court also considered the fact that the TILR has not

stated anything in respect of finding of permanent marks. He has also not

confirmed the boundaries, which he should have done. He then could not

state the area of the field Survey No. 194/3 found in the measurement. He

further could not state the length and breadth of the alleged encroachment.

Hence for various reasons recorded by the trial Court in its judgment, in

paragraphs 26 and 27, the trial Court held that the measurement carried out

by the TILR is not proper and on the basis of such measurement and the

map, the suit instituted by the plaintiff for removal of encroachment and for

possession cannot be decreed. The trial Court therefore dismissed the

plaintiff's suit.

 927-J-AO-53-16                                                                                6/14


7]           This judgment and decree of the trial Court was taken in appeal

by   the   Respondent-plaintiff   before   the   District   Judge,   Yavatmal.       In   the

appeal, the first appellate Court again re-appreciated the entire evidence on

record and concurred with the finding of the trial Court that the

measurement of the land carried out by the TILR was not correct and proper

as he has not adopted the proper procedure; the original record of

measurement was not with him when his evidence was recorded. Moreover,

his evidence was silent about the number of permanent marks he had found

during the measurement. The length and breadth of alleged encroachment

was also not shown in the map and therefore the first appellate Court also

confirmed the finding of the trial Court that the map drawn by the TILR at

Exhibit-266 cannot be relied upon to determine the encroachment.

8] The first appellate Court, therefore, held that it would not be

proper to dismiss the suit simply because the surveyor has not adopted the

correct procedure of measurement and hence it is essential to remand the

matter back for framing the issue of ownership and also for appointment of

commissioner for measurement.

9] Accordingly, the first appellate Court partly allowed the appeal

and remanded the matter back for retrial, vide the impugned judgment and

order; further directing the trial Court to appoint qualified Surveyor as

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commissioner for measurement of Survey No.194/3 as well as Survey

No.196 by adopting proper procedure of measurement and settle the

boundaries of both survey numbers. Surveyor was also directed to measure

the surrounding survey numbers, if necessary and to follow the procedure

prescribed by rules and submit his report within six months from the date of

receipt of writ from the Court. The trial Court was further directed to call

upon the parties to lead evidence on the issues which were already framed at

Exhibit-17. Both the parties were accordingly directed to appear before the

trial Court on the date stipulated in the judgment.

10] This order of the first appellate Court is the subject matter of

challenge in this appeal. According to learned counsel for the appellant,

once the TILR was already engaged and appointed by the respondent-

plaintiff to measure the land and he has filed his report before the trial

Court, there was no necessity of appointing another TILR for the same cause

and that too by the first appellate Court, on its own notion, while

respondent-plaintiff himself has not raised any ground of appeal to that

effect in the appeal memo. It is submitted that, if respondent-plaintiff was

aggrieved by the measurement taken by the TILR, then he could not have

relied upon that measurement map. However even in the appellate Court,

respondent-plaintiff has still relied upon the said measurement map, to prove

the encroachment. Hence, when respondent-plaintiff was not aggrieved,

927-J-AO-53-16 8/14

appointment of TILR by the first appellate Court on its own again for the

same cause of re-measurement of the land, is as good as collecting the

additional evidence, that too by way of remand of the matter. It is urged that

the order of remand passed by the first appellate Court is also not covered

within the four corners of Rule 23A or even Rule 25 of Order 41 of C.P.C,

hence on this ground also order of remand needs to be set aside as it is

unnecessarily causing great prejudice to the appellant, who was not

specifically heard on the point as to whether there is any need to remand the

matter. It is submitted that in the appellate Court, the issues are not framed

and only the points for determination are framed, that too in the course of

judgment and therefore the appellant was not made aware or not heard on

this aspect as to whether matter needs to be remanded. It is, therefore,

urged by the learned counsel for the appellant that the impugned judgment

and order of the trial Court cannot be sustained in law and hence needs to

be set aside.

11] To substantiate his submissions, learned counsel for the appellant

has relied upon various reported judgments of this Court, like in case of

Chandrarao s/o Hanumantrao Wable vs. Dhondu s/o Fula Patil 2012(2)

Mh.L.J. 847, wherein it was held that if the measurement of the land is

already carried out by TILR who is in charge of of the office at Taluka level,

and is also a gazetted officer and plaintiff did not make any grievance about

927-J-AO-53-16 9/14

measurement carried out by him, then in absence of such grievance, the trial

Court was not justified in allowing the application for re-measurement, that

too, when the recording of the evidence was almost complete.

12] Needless to state that the facts of this decision are totally different

from the facts of the present case, as the plaintiff in that case was not aware

as to whether measurement carried out by TILR could be held as legal and

valid and hence he might have not raised any grievance about the said

measurement. However in the instant case, it must be noted that, both the

trial Court and the first appellate Court found the measurement carried out

by TILR as not proper and correct as he has not followed the due procedure.

I have already noted the infirmities which both the Courts found in the

method of measurement adopted by TILR. The minimum basic requirement

of finding of permanent marks and showing the area of the encroached

portion in the map was also not complied with by TILR. Hence both the

Courts were not satisfied with the measurement drawn by him. Hence the

trial Court dismissed the suit. It was the first appellate Court which felt that,

in order to resolve the controversy involved in the matter fully and

effectively, the measurement of the suit plot is necessary. And therefore in

order to attain the finality to the dispute and achieve the substantial cause of

justice, Appellate Court thought it proper to remand the matter for

remeasurement of the land, by adopting the proper procedure.

 927-J-AO-53-16                                                                              10/14


13]          The   next   authority   relied   upon   by   learned   counsel   for   the

appellant is that of Maria Pereira and ors. vs. Dolorosa Christina

Rodrigues (D) Thr. L.R.s. 2015(5) Mh.L.J. 577. In the said judgment also

the trial Court did not find local investigation necessary and hence suit was

decreed on the basis of evidence produced by the parties. The appellate

Court directly appointed the Commissioner to inspect site and submit report

about exact location of the suit plot. In the backdrop of these facts, it was

held that under Order XXVI Rule 9 of C.P.C., appointment of Commissioner

cannot be permitted to collect evidence just before the judgment. The

appellate Court has to decide the matter based on material already brought

by evidence of both parties. However, perusal of the judgment in this case

goes to show that the dispute in the case was not relating to encroachment or

joint measurement by the plaintiff and defendant, but it was pertaining to

exact location of the plot. In the trial Court it was not found that local

investigation was necessary for the purpose of elucidating the matter in

dispute and hence, the appointment of Commissioner by the Appellate Court

to inspect the site and submit report of exact location of the suit plot was

held to be amounting to collection of evidence.

14] As against it, in the instant case, dispute pertains to removal of

encroachment and the law is well settled that such dispute can be decided

only on the basis of the joint measurement of both the properties; the correct

927-J-AO-53-16 11/14

and proper authority to carry out such measurement and to bring the facts on

record before the Court as to exact location of the plot is the TILR.

15] In the present case, already the TILR has been appointed. He has

measured the land to find out the encroached portion, however the method

adopted by him for carrying out measurement was not proper. Hence, the

said measurement was not relied upon. There was no fault on the part of

the plaintiff in case of such faulty measurement. Plaintiff, therefore, cannot

be held responsible for it and hence, should not suffer the consequence if

TILR has not adopted the proper procedure for measurement of the land.

16] This Court has in its judgment in Vijay s/o Shrawan Shende and

ors vs. State of Maharashtra and ors. 2009(5) Mh.L.J 279 has held that

when there is question as to extent of encroachment, it is not a matter to be

adjudicated upon oral evidence of any number of witnesses who have

witnessed the act of encroachment, The extent of encroachment cannot be

proved in absence of public records and procedure emerging from Section 36

and Section 60 of Evidence Act. Extent of encroachment can be proved only

by the person who has measured the land allegedly encroached, with public

records relating to the survey numbers. It was further held that the question

of encroachment has a direct bearing on the boundaries of the land, which is

subjected to land revenue and is measured and marked in the process of

927-J-AO-53-16 12/14

public survey on preparation of Land Records under the provisions of

Maharashtra Land Revenue Code or law in existence prior thereto, and these

records are public documents. It was further held that, it would not be

proper to dismiss the suit simply because the Court Commissioner has not

adopted a correct procedure of measurement and the exercise of re-

measurement, according to rules, will have to be got done through Court

Commissioner again and again, if necessary, because failures of Cadestral

Surveyor are not attributable to parties to the suit.

17] In another decision of this Court in case of Vasant Tukaram

Prabhu vs. Xalinibai Borcar alias Shalinibai Borakar 2014(5) MhLJ 382

also this Court has dealt with same situation when the First appellate Court

has remanded the matter on the count that the measurement map drawn by

the TILR was not by adopting the correct and proper procedure. Placing

reliance on various authorities of the Apex Court and this Court, it was held

that, "whenever controversy in the suit revolves around the identity and

boundaries of the suit property, the law would require the Court to suo motu

exercise its power under Order XXVI Rule 9 of the Civil Procedure Code,

1908". The said legal position is also upheld in Kashinath s/o Ramkrishna

Chopade vs. Purushottam Tulshiram Tekade and ors 2005(4) Mh.L.J. 471

and Girish Vasantrao Bhoyar and anr. vs. Nimbaji Warluji Bambal

2009(4) Mh.L.J. 371.

 927-J-AO-53-16                                                                               13/14


18]          In the instant case also, when both the trial Court and the first

Appellate Court have come to a positive finding that the measurement

carried out by TILR, appointed by the respondent-plaintiff was not according

to the procedure, required by the Rules and hence refused to believe the

same, then re-measurement of the suit property becomes necessary to decide

finally the controversy involved in the suit which revolved around the

boundaries of the property. In my considered opinion, the only way open to

the first Appellate Court was, therefore, to direct the remeasurement of land

by appointment of TILR as Court Commissioner again. If, on the basis of oral

evidence of the parties alone, such disputed question cannot be decided, then

without any fault on the part of the respondent-plaintiff, the suit cannot be

dismissed, only on the ground that TILR has not done his job properly. After

all, the duty of the Court is not to dispose of the matter arbitrarily, but to

take keen interest and to ensure that substantial cause of justice is served by

resolving finally the controversy involved.

19] As to the submission of learned counsel for the appellant that

there is no scope for remanding the matter to collect additional evidence and

that too when not asked for by the plaintiff, needless to state that the power

of remand exercised by the Appellate Court for ordering retrial is, as laid

down in Rule 33 of Order XLI of C.P.C and that was to achieve the

substantial cause of justice. Here in the case at hand, the first appellate

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Court has remanded the matter for retrial, as it has ordered the appointment

of TILR to measure the land and to submit the report, which will have to be

proved. Hence, an opportunity was necessary to be extended to both the

parties to challenge or accept the said report. The first Appellate Court has,

therefore, rightly sent the matter for retrial, as entire controversy has to be

decided again afresh. Such retrial is definitely covered under the order of

remand. As the issue was already framed by the trial Court as to whether the

plaintiff has proved the encroachment made by the defendant? it was not

found necessary to frame fresh issue.

20] About the grievance of learned counsel for the appellant that as

appellant was not heard on this issue as to whether remand was necessary

and hence prejudice is caused to him, now appellant is getting opportunity

to contest the matter on merit in the trial Court. Thus, looked at from any

angle, this Court does not find any reason to interfere in the impugned order.

The appeal, therefore, holds no merit and stands dismissed. Parties to bear

their own cost.

JUDGE

Asmita