Vijay S/O Manoharrao Naik vs Diwakar S/O Vithalrao Naik (Since ...
2017 Latest Caselaw 6940 Bom

22-J-SA-183-17                                                                           1/5


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

                          SECOND APPEAL NO.183 OF 2017


Vijay s/o Manoharrao Naik, 
Aged about 57 years, Occ. Agriculturist, 
R/o Khadgaon, Nagpur (Rural), 
Tahsil and District-Nagpur                                  ... Appellant

-vs- 

Diwakar s/o vithalrao Naik, 
(since deceased though his L.Rs) 

1.  Usha wd/o Diwakar Naik,
     Aged about 57 years, 
     Occupation Household, 

2.  Runali d/o Diwakar Naik,
     Aged about 28 years, Occupation Nil, 

3.  Uday s/o Diwakar Naik,
     Aged about 29 years, 
     Occupation - Private, 

    All R/o Khadgaon, Nagpur (Rural), 
    Tahsil and Dist. Nagpur                                 ...  Respondents. 


Shri S. P. Kshirsagar, Advocate for appellant. 
Shri V. R. Thote, Advocate for respondents. 


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : September 08, 2017

Oral Judgment :

Admit.

Heard finally on the following substantial question of law :

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" Whether the suit and the counterclaim are required to be adjudicated afresh in the light of the fact that the trial Court had passed a preliminary decree which it could not have passed as the suit was for permanent injunction and removal of encroachment ? "

2. The appellant is the original plaintiff who had filed suit for

removal of encroachment. It is the case of the plaintiff that one Vithalrao

Naik had two sons, Manohar and Diwakar. The plaintiff is the son of

Manohar while the defendant was his uncle Diwakar. Survey No.30 was

partitioned between the family members. The plaintiff's father was granted

survey No.30/2 while the defendant was granted survey No.30/1. According

to the plaintiff the defendant committed encroachment on the portion of the

aforesaid property and hence suit for removal of encroachment was filed.

3. The defendant filed his counterclaim and stated that it was the

plaintiff who had committed encroachment to the extent of land

admeasuring 1H 47 R. A prayer for possession was thus made.

4. The trial Court after considering the evidence on record found

that the Cadesteral Surveyor had measured only Survey No.30/01 but did

not measure Survey No.30/2. On that count the trial Court on the basis of

the judgment of this Court in Vijay s/o Shrawan Shende and ors. vs. State

of Maharashtra and ors. 2009(5) Mh.L.J. 279 found it necessary to direct

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re-measurement of both the survey numbers. The trial Court decreed the suit

as well as the counterclaim and directed the Inspector of Land Records to

measure both the lands. The plaintiff being aggrieved by this decree filed an

appeal. The appellate court found that the measurement carried out by the

Cadesteral Surveyor was proper and on that basis the suit of the plaintiff

was dismissed. The counterclaim came to be decreed. Hence this second

appeal.

5. Shri S. P. Kshirsagar, learned counsel for the plaintiff submitted

that while the trial Court was justified in directing joint measurement of both

the survey numbers, it committed an error in passing a decree in those terms.

The suit ought to have been kept pending instead of passing a preliminary

decree. According to him a preliminary decree of such nature could not

have been passed. Moreover, the appellate Court committed an error in

accepting the report of the Cadesteral Surveyor though he had admitted that

he had measured only one survey number. Learned counsel placed reliance

on the decision in Vijay Shende and ors. (supra).

6. Shri V. R. Thote, learned counsel for the respondents supported

the impugned judgment. He submitted that the plaintiff did not permit

measurement of survey No.30/2 and therefore the appellate Court was

justified in coming to the conclusion that it was only the plaintiff who had

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committed encroachment. According to him, the defendants had proved that

it was the plaintiff who had committed encroachment.

7. I have heard the learned counsel for the parties and perused the

impugned judgment. The trial Court did not accept the report of the

Cadesteral Surveyor on the ground that said witness had admitted that he

had measured only the defendant's survey number. Having recorded said

finding, the trial Court was also correct in following the law laid down by

this Court in Vijay Shende and ors. (supra) and directing joint measurement

of both the survey numbers. However, the suit ought to have been kept

pending awaiting such joint measurement and no preliminary decree could

have been passed on that basis. After receiving the report, the trial Court

could have adjudicated on the claim made in the suit and the counterclaim.

The appellate Court rightly found that the preliminary decree as passed could

not have been passed in the suit for permanent injunction. Having arrived at

that conclusion, the appellate Court should have remanded the proceedings

to the trial Court to have both the lands measured. Instead, the appellate

Court took into consideration the report of the Cadesteral Surveyor. As

noted above the Surveyor had measured only the defendant's land and not

the plaintiff's land. Thus in effect I find that fresh adjudication after joint

measurement is warranted in the facts of the case.

8. The substantial question of law as framed is answered by holding

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that the suit and the counterclaim ought to be adjudicated afresh after

receiving the report as to joint measurement. Hence the following order is

passed :

(i) The judgment of the trial Court in R.C.S. No.1768/2003 except

diretion Nos.3 to 7 as issued and that of the appellate Court in

R.C.A. No.29/2014 are quashed and set aside. The proceedings

before the trial Court are revived.

(ii) The trial Court shall ensure compliance of the directions issued in

paragraphs 3 to 7 of its decree. After the report of the

Commissioner is received, the suit shall be decided on its merits

and in accordance with law. Needless to state that both the parties

are at liberty to raise challenge to the report of the Court

Commissioner if the occasion arises.

(iii) As the suit is of the year 2003, the proceedings are expedited. The

suit shall be decided within period of six months from the date of

appearance of the parties.

(iv) The parties shall appear before the trial Court on 18/09/2017.

(v) Appeal is allowed in aforesaid terms with no order as to costs.

JUDGE

Asmita