Shri. Prabhakar Sahadeo Talokar vs Shri. Sanjay Shatrughan Dhombale
2017 Latest Caselaw 6985 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 335 of 2016


 Prabhakar Sahadeo Talokar,
 aged about 63 years,
 occupation - Agriculture,
 resident of Mhaispur,
 Tq. & Distt. Akola.                          .....           Appellant
                                                            Org.Plff.


                                   Versus


 Shri Sanjay Shatrughan Dhomble,
 aged about 43 years,
 occupation - Agriculture,
 resident of Mhaispur,
 Tq. & Distt. Akola.                          .....        Respondent
                                                           Org.Deft.


                                 *****
 Mr. G. R. Sadar, Adv., for the appellant.

 Mrs. S.S. Jachak, Adv., for respondent.

                                    *****




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                                      CORAM :        A.S. CHANDURKAR, J.

                                      Date       :   11th September, 2017

 ORAL JUDGMENT:


 01.            Heard.         Admit on the following substantial questions of

 law:-

"1. Whether the reasons for not accepting the measurement at Exh.59 are based on evidence available on record?

2. If the appellate Court was not satisfied with the manner in which the measurement at Exh.59 was undertaken, whether it should have directed fresh joint measurement?"

Mrs. S. S. Jachak, learned counsel, waives notice on behalf of

the respondent.

02. The appellant is the original plaintiff who has filed a suit for

removal of encroachment to the extent of 0.25 Are land. It is his case

that he has purchased the suit property to the extent of 1 hectare 41

Are and is owner thereof. His Survey No. is 66/1. The defendant who

is the owner of the adjoining field bearing Survey No. 66/1A had

committed encroachment to the extent of 25 Are land. Hence, after

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measuring the land from the Taluka Inspector of Land Records [TILR],

suit for removal of encroachment was filed.

03. According to the defendant, he had not committed any

encroachment. The defendant was in possession of 1 hectare 43 Are

land from Survey No. 66/1A and hence the suit was liable to be

dismissed.

04. Before the trial Court, the TILR was examined. There was a

dispute raised with regard to service of notice of the measurement on

the defendant. It was held by the trial Court that such notice was

issued. On accepting the report of the TILR, the suit was decreed. The

first appellate Court, however, found that notice was not served on the

defendant and hence the measurement was doubtful. On that basis,

the suit came to be dismissed after allowing the appeal.

05. Shri G.R. Sadar, learned counsel for the appellant, submitted

that the defendant was duly served with the notice of measurement.

The trial Court had rightly accepted the report of the TILR and decreed

the suit. The map at Exh.59 was prepared in the presence of the

plaintiff and defendant and, therefore, the appellate Court was not

justified in dismissing the suit. The appellate Court could have directed

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a fresh measurement of the properties.

06. Mrs. S. S. Jachak, learned counsel for the respondent,

supported the impugned judgment. It was submitted that there was

no acknowledgment on record to prove service of the notice on the

defendant before the property was measured. Hence, findings

recorded by the appellate Court in that regard were correct and the

suit was rightly dismissed.

07. Having heard the learned counsel for the parties and having

perused the evidence on record, I find that there is no

acknowledgement of the defendant placed on record to indicate

intimation being given to him about the measurement. The appellate

Court has rightly observed that in absence of evidence as to service of

the notice, the map at Exh.59 was liable to be discarded. Having held

so, the appellate Court ought to have directed a fresh measurement of

the properties so as to resolve the dispute, as held in Vijay Shrawan

Shende & others Vs. State of Mah. [2009 (5) Mh.L.J. 279]. The

dispute pertains to removal of encroachment and hence it was

necessary to have both the lands measured in the presence of the

parties.

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08. Considering the nature of evidence on record and the

dispute between the parties, it would be in their interests that Survey

Nos.66/1 and 66/1A are jointly measured in their presence. This would

enable the adjudication of the dispute in a proper manner.

Accordingly, substantial question of law no.1 is answered by holding

that the report at Exh.59 was rightly not accepted by the appellate

Court. In so far as substantial question of law no.2 is concerned, it is

answered in favour of the appellant. The appellate Court should have

directed a fresh joint measurement of both the properties.

09. In view of aforesaid, the judgment of the first appellate

Court dated 11th February, 2016 in Regular Civil Appeal No.107 of

2015 is quashed and set aside.

10. The proceedings are remanded to the trial Court. The trial

Court shall appoint the Taluka Inspector of Land Records for having a

joint measurement of the suit properties. Both the parties shall

equally bear the costs of joint measurement. For said purpose, the

parties shall appear before the trial Court on 20th September, 2017.

As the suit is of the year 2007, the proceedings are expedited. The

trial Court shall decide the suit within a period of six months from the

first date of appearance. The trial Court shall decide the suit on its

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own merits without being influenced by any observations made by this

Court.

11. Second Appeal is allowed in aforesaid terms. No costs.

Judge

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