Bombay High Court
Darshan S/O Kapurchand Daftari vs Archana Wasudeorao Mauskar And 2 ... on 6 November, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.68/2016
Darshan s/o Kapurchand Daftari,
aged 65 years, Occ. Business,
r/o Nalwadi, Tq. Dist. Wardha. .....APPELLANT
...V E R S U S...
1. Archana Wasudeorao Mauskar,
aged 35 years, Occ. Nil.
2. Ramesh Wasudeorao Mauskar,
aged 51 years, Occ. Nil.
3. Balkrishna Wasudeorao Mauskar,
aged 35 years, Occ. Nil.
All r/o Laxminagar, Wardha,
Tq. Dist. Wardha. ...RESPONDENT
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Mr. P. V. Ghare, Advocate for appellant.
Mr. M. R. Johrapurkar, Advocate for respondents.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 06.11.2017
ORAL JUDGMENT
1. Heard Mr. P. V. Ghare, Advocate for the appellant and
Mr. M. R. Johrapurkar, Advocate for respondents.
2. This Court had on 20.02.2107 framed the following
questions of law.
(i) Whether the lower appellate Court committed
an error in going into the question of title of the plaintiff
over the suit property?
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(ii) Whether the claim for removal of
encroachment is based upon the measurement of the suit
property placed on record?
3. The present appeal is filed by the original plaintiff. In the
plaint itself, it has been stated by the plaintiff that the plot in
question was purchased by the plaintiff from the owner of the suit
field. The trial Court did not frame issue about the title of the
plaintiff and has recorded a finding that the present plaintiff sold the
property to M/s. Tiwari Land Development Corporation. Whereas the
appellate Court has formulated point no.1 to the effect as to whether
the plaintiff proves that he is the owner of the suit property?
Thus, the appellate Court, in my view ought to have seen
that the parties to the appeal got sufficient opportunity to prove the
title, especially when the issue was not framed by the trial Court. On
this ground itself the present appeal is required to be allowed and is
required to be remanded to the trial Court for consideration under
Order XLI Rule 25 of the Code of Civil Procedure.
4. Further, it was also incumbent on the trial Court to
appoint the Court Commissioner by exercising powers under Order
XXVI Rule 9 of the Code of Civil Procedure in order to reach to the
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conclusion as to whether the defendants have made any
encroachment on the suit field.
5. In that view of the matter, the substantial questions of
law are answered in the affirmative. The judgments of both the
Courts below are set aside and the matter is remanded back to the
trial Court with a direction that the trial Court shall frame issue
about the title and also appoint Court Commissioner. The trial Court
shall, after obtaining Court Commissioner's report, decide the suit by
giving an opportunity to both; the plaintiff and the defendants in
respect of their objection if any to the report of the Court
Commissioner and decide the suit afresh, in accordance with law.
Special Civil suit No.124/1999 is restored to the file. The
parties are directed to appear before the learned Civil Judge Senior
Division, Wardha on 15.12.2017. The learned Civil Judge Senior
Division, Wardha is directed either to decide the suit himself or allot
it to any other competent Court having the territorial jurisdiction.
Trial Court is expected to decide the suit as expeditiously
as possible keeping in mind that the suit is of the year 1999.
No order as to costs.
JUDGE
kahale
