Bombay High Court
Ms. Nazia D/O Mohd. Arif Thr. ... vs Mahendra Kumar Javery Family ... on 15 November, 2017
Bench: Z.A. Haq
1 wp1726.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.1726/2017
Ms. Nazia D/o Mohd. Arif,
C/o Mohd. Arif S/o Abdul Shakoor,
R/o 102, Girish Heights, Near Bharat
Talkies, Kamptee Road, Nagpur, through
her Power of Attorney Mr. Mohd. Arif
S/o Abdul Shakoor, aged 62 Yrs.,
Occu. Business R/o Kamptee Road,
Nagpur. ..Petitioner.
..Vs..
Mahendra Kumar Javery Family Trust
alias M.K. Javery Family Trust, a Private Family
Trust, having its office at Indra Saryu, Javery
Complex, Chindwara Road, Chhaoni, Nagpur,
through its Trustee Mr. Randhir Javery / Mr.
Viradh Javery. ..Respondent.
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Shri N.H. Shams, Advocate for the petitioner.
Shri Shyam Dewani, Advocate for the respondent.
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CORAM : Z.A. HAQ, J.
DATE : 15.11.2017.
ORAL JUDGMENT
1. Heard Shri N.H. Shams, Advocate for the petitioner and Shri Shyam
Dewani, Advocate for the respondent.
2. Rule. Rule made returnable forthwith.
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3. The petitioner / original defendant has challenged the order passed
by the trial Court rejecting the application (Exh. No.29) filed by her under
Order 39 Rules 1 and 2 of the Code of Civil Procedure praying that
Commissioner be appointed to measure the entire land and also to measure the
land in possession of the plaintiff and the defendant.
4. Though prima facie the observation of the learned trial Judge that
the defendant is seeking to collect the evidence through Court Commissioner
appears to be proper, one relevant aspect is overlooked by the learned trial
Judge while considering the application (Exh. No.29). The plaintiff is relying
on a copy prepared by the office of city survey and defendant also relies on a
map prepared by city survey and there is substantial difference in these two
maps. The learned Advocate for the petitioner / defendant has pointed out an
order passed by the City Survey Officer on 30 th May, 2016 recording that the
map prepared pursuant to the measurement undertaken on 25th January, 2016
in case No.1702/2016 and Case No.1710/2016 on 5 th February, 2016 should
be treated as cancelled. In these facts, I find that the prayer made by the
defendant is justified and the report which would be submitted by the Court
Commissioner would be of valuable assistance to the Court for deciding the
controversy.
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5. Hence the following order:
(i) The impugned order is set aside.
(ii) The prayer of the defendant for appointment of Court Commissioner
is granted.
(iii) The application (Exh. No.29) is allowed accordingly.
(iv) The Superintendent of Land Records shall cause measurement of the
property in question through an Officer / Surveyor above the rank of the
Surveyor / Surveyors who had carried out the measurement earlier.
(v) The defendants shall deposit the required amount with the
Superintendent of Land Records within 15 days.
(vi) The Superintendent of Land Records shall submit the report on the
basis of the measurement carried out under his instructions.
(vii) The report shall be submitted to the trial Court within two months.
Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
