Ishwar Ramchandra Gahane Nagpur vs Smt Foolanbi Rahemankhan Pathan & ...
2017 Latest Caselaw 8577 Bom

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

                    SECOND APPEAL NO.242/2004
       Ishwar s/o Ramchandra Gahane,
       aged 45 years, Occ. Agriculturist,
       r/o Post Gumgaon, Tq. Hingna,
       Dist. Nagpur.                       .....APPELLANT
                         ...V E R S U S...

 1. Smt. Foolanbi Rahemankhan Pathan,
    aged 66 years, Occ. Agriculturist,
    r/o Wadhona Bazar, Tq. Ralegaon,
    Dist. Yavatmal.

 2. Hasina Kalamkha Pathan,
      aged 41 years, Occ. Household,
      r/o Wadhona Bazar, Tq. Ralegaon,
      Dist. Yavatmal.                                         ...RESPONDENTS
 -------------------------------------------------------------------------------------------
 Mr. S. S. Chavan, Advocate for appellant. 
 Mr. A. Subhan, Advocate for respondents. 
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 09.11.2017 ORAL JUDGMENT

1. Heard Mr. Chavan, Advocate for appellant and Mr. A.

Subhan, Advocate for the respondents.

2. On 08.07.2004, the present Second Appeal was admitted

on the following substantial questions of law:

"(1) Did the appellate Court commit error of law in failing to call for original measurement record when on the face of the admitted fact of ownership of the plaintiff, some deficiencies were found in reckoning of the area encroached?

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        (2)            Could the extent of area of encroachment be

proved by any other fact than measurement and in the event the Court arrives at the conclusion that the measurement was defective, will such defect in measurement render the factum of encroachment ipso facto non est non suiting the plaintiff?"

3. The present appeal is by original plaintiff. The suit was

for recovery of encroached land. The suit was partly decreed and the

defendants were directed to hand over the vacant possession of 1

Hectare 4 R of land in favour of the appellant-plaintiff from and out

of Gat No.160 of village Wadhona Bazar, Tq. Kelapur, Dist.

Yavatmal. An appeal was carried against the said decree and the

learned appellate Court, vide impugned judgment dated 10.12.2003,

allowed the appeal and dismissed the suit.

4. The original defendants admitted the fact of transaction

namely; execution of the sale deed dated 16.02.1990 in favour of the

plaintiff by which the agricultural field to the extend of 2 H 78 R was

transferred by Rahman Khan, father of defendant no.2 and husband

of defendant no.1. During the course of the trial, the measurer who

measured the land was also examined. The learned trial Court relied

upon the testimony of the State measurer Sudhakar Hole and found

that on 11.01.1996, he measured the land Gat No. 160 of village

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Wadhona Bazar. The evidence of Surveyor shows that before visiting

the spot, notices were issued to the adjoining land holders and the

acknowledgments are in the Measurement Case No.102/

Wadhona/995. As per the evidence, the land was measured by Plain

Table Method. The certified copy of the measurement map is at

Exh.-32. According to the learned Judge of the trial Court, therefore

the defendant has encroached upon 1 H 4 R of land.

The appellate Court found that the record was not

brought by Sudhakar Hole, during his testimony. Therefore, he

disbelieved the version and allowed the appeal.

5. It is not in dispute that Sudhakar Hole (PW2) measured

the land and that was registered as Measurement Case No.102/

Wadhona/1995.

The learned lower appellate Court ought to have seen

that when the said measurement record is available in the office of

Cadestral Surveyor, it was the duty of the appellate Court to grant

opportunity to the parties to call for the record suo motu.

6. Mr. Chavan, learned counsel for the appellant submitted

that he is praying for remand of the matter.

Mr. Abdul Subhan, learned counsel for the respondent

has no objection for the same.

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7. In that view of the matter, the judgment of the lower

appellate Court is hereby set aside by answering the substantial

questions of law in the affirmative.

8. The judgment and decree passed by the Additional

District Judge, Kelapur in Regular Civil Appeal No.209/2002 (Old

No.250/2000) is hereby set aside.

Regular Civil Suit No.122/1999 is remanded back to the

file of Jt. Civil Judge Junior Division, Kelapur. Parties to the suit are

permitted to move the application before the Civil Court calling for

the record of Measurement Case No.102/(Sadharan) Wadhona/

1995. If the said application is filed, the trial Court is directed to

allow the said application and call for the record of the said case and

permit the parties to adduce the evidence in that behalf afresh and

decide the suit, in accordance with law by giving an opportunity to

both; the plaintiff and the defendants.

The parties are directed to appear before Civil Court,

Kelapur on 09.01.2018. Registry is directed to remand back the

record and proceedings immediately to the Court of Civil Judge

Junior Division, Kealpur. No order as to costs.

JUDGE

kahale