Trimbak Sitaram Bahakar vs Bhagwan Namdeo Bahakar
2017 Latest Caselaw 8961 Bom

                                                    1                          sa51.17.odt

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

                        SECOND APPEAL NO.454/2016

      Trambak Sitaram Bahakar,
      aged about 56 years, Occ. Agriculturist, 
      r/o Chohogaon, Tq. Barshi Takli, 
      Dist. Akola.                              .....APPELLANT
                       ...V E R S U S...

      Bhagwan Namdeo Bahakar,
      aged 36 years, Occ. Agriculturist.
      R/o Chohogaon, Tq. Barshi Takli,
      Dist. Akola.                                           ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. U. J. Deshpande, Advocate for appellant.
 Mrs. S. W. Deshpande, Advocate for respondents. 
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- 22.11.2017

ORAL JUDGMENT

1. Heard Mr. U. J. Deshpande, Advocate for appellant and

Mrs. S. W. Deshpande, Advocate for respondent.

2. After hearing both the learned counsel, it appears that the

second appeal involves substantial question of law to the extent that

once the appellate Court recorded a finding in paragraph 29 of its

judgment that on the basis of the oral as well as documentary

evidence filed on record by both the parties, it is very difficult to

come to the conclusion of deciding the encroachment or not, still the

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lower appellate Court has proceeded with deciding the appeal.

Therefore the appeal is Admitted, on the following substantial

questions of law.

(i) Whether the lower appellate Court was justified in

deciding the appeal without taking aid from the Court

Commissioner to decide the issue about the encroachment?

(ii) Whether the suit is required to be remanded to the

trial Court for having a report from the Court Commissioner?

Both the learned counsel submit that the matter can be

heard forthwith. Accordingly, the matter is taken up for final hearing.

3. The appellant is owner of the field survey no.15/1

whereas the respondent-original plaintiff is owner of field survey

no.15/2. According to the respondent-plaintiff, the appellant has

made encroachment on his land to the extent of 15 R. In order to

prove encroachment, the respondent has adduced evidence of Satish

Hatekar (PW5), the Measurer. He has proved the map Exh.-52. Also

according to the respondent, the appellant has executed a Chit, Exh.-

58. Though, this material was available with the lower appellate

Court, still the appellate Court was of the view that from the

available evidence, both oral as well as documentary, it is difficult to

record finding about the encroachment. If that be so, the learned

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lower appellate Court, in my view, ought to have exercised powers

under Order XLI Rule 25 of the Code of Civil Procedure and ought to

have remanded the matter for a limited purpose for appointing the

Court Commissioner i.e. Taluka Inspector Land Records and ought to

have obtained the report and ought to have decided the appeal

afresh.

4. In view of above, I am of the view that for this limited

purpose only, the matter is required to be remanded back to the trial

Court and the trial Court shall, by exercising the powers, pass the

appropriate orders for appointment of Cadastral Surveyor with a

direction that he shall, after following the process by giving notices

to both the appellant and respondent and other interested parties,

measure the lands the appellant and the respondent and shall file a

report with the trial Court. The trial Court thereafter shall give an

opportunity to the parties to the suit to raise objections to the report

of the Cadastral Surveyor, if any. The trial Court thereafter shall

decide the issue of encroachment. It is to be noted that the Surveyor

shall also file on record the Superimposed Tipan Extract on the

tracing paper in respect of the measurement exercise.

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5. In view of above, the judgments and decrees passed by

both the Courts below are set aside. The matter is remanded back to

the trial Court for deciding the limited issue of encroachment. The

trial Court shall pass an appropriate order and after giving an

opportunity of hearing to both the parties shall decide the issue of

encroachment in accordance with law within eight months from the

date of appearance of the parties before it. Both the parties agree to

appear before the trial Court on 11.12.2017. Both the parties shall

extend full cooperation to the trial Court and shall not unnecessarily

obtain adjournments from the Courts. If it is noticed by the trial

Court that any of the parties is unnecessarily trying to prolong the

litigation then it will be open for the learned trial Court to take

necessity steps in the matter.

The appeal is disposed of accordingly. No order as to

costs.

JUDGE

kahale