Bombay High Court
Sampat Natthu Kaikadi vs Bhimrao Nathuji Kadu on 25 September, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.503 of 2015
Sampat Natthu Kaikade,
aged about 45 years,
occupation - cultivator,
resident of Pathrot,
Tq. Achalpur,
Distt. Amravati. ..... Appellant
Org. Deft.
Versus
Bhimrao Nathuji Kadu,
aged about 71 years,
occupation - Farmer,
resident of Pathrot,
Tq. Achalpur,
Distt. Amravati. ..... Respondent
Org. Plff.
*****
Mr. P. Dharaskar, Adv., holding for Mr. A. Parchure, Adv., for the
appellant.
Mr. P.S. Patil, Adv., for respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 25th September, 2017
ORAL JUDGMENT:
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01. The appeal has been admitted by framing the following
substantial question of law:-
"In the light of deposition of the measurer at Exh.30
and the two maps on record at Exhs. 31 and 32, the
trial Court having dismissed the suit for removal of
encroachment, whether the first appellate Court was
legally justified in reversing this decree as passed by
the trial Court?"
02. While hearing Civil Application No. 968 of 2015, the learned
counsel for the parties submitted that the appeal itself be decided on
the aforesaid substantial question of law. Accordingly, learned counsel
have been heard at length.
03. The respondent-plaintiff is the owner of Field Survey No.
39/2, situated at Mouza Waghdoh, Tq. Achalpur, Distt. Amravati. On
the Northern side of his field is the field of the appellant-defendant
bearing Survey No. 45/8. On 19th May, 1999, the plaintiff measured
his field and found that the defendant had committed encroachment to
the extent of three Are land. Hence, suit for removal of encroachment
with a prayer for delivery of possession was filed.
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04. In the Written Statement, it was denied that any
encroachment was committed by the defendant. After the parties led
evidence, the trial Court found that the plaintiff had failed to prove his
case. It, therefore, dismissed the suit. The first appellate Court
reversed the said judgment and on the basis of the map at Exh.31,
decreed the suit. Being aggrieved, the defendant has filed this appeal.
05. Shri P. Dharaskar, learned counsel for the appellant,
submitted that the appellate Court committed an error in relying upon
the deposition of the Surveyor at Exh.30. He submitted that though
there were two maps at Exhs.31 and 32 on record, the same indicated
that the fields of the plaintiff and defendant had not been jointly
measured. He referred to the deposition of the Surveyor to indicate
various admissions given by him in his deposition. He, therefore,
submitted that the trial Court had rightly dismissed the suit and the
appellate Court erred in reversing said decree.
06. Shri P.S. Patil, learned counsel for the respondent, supported
the impugned judgment. According to him, it was clear from the
record as well as the deposition of the Surveyor that the defendant had
committed encroachment to the extent of three Are land. He
submitted that this position was clear on perusal of both the maps. As
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the judgment of the first appellate Court was based on appreciation of
evidence, no interference was called for.
07. I have heard the learned counsel for the parties at length
and with their assistance I have also perused the records of the case.
08. The respective ownership of Field Survey Nos. 39/2 and 45/8
is not in dispute. For proving the encroachment, the plaintiff had
examined the retired Taluka Inspector of Land Records below Exh.30.
He had prepared two maps at Exhs. 31 and 32 and on that basis, it
was his contention that the defendant had committed encroachment to
the extent of three Are. Perusal of these two maps at Exhs.31 and 32
indicates that Survey No. 39/2 alone was measured as per the map at
Exh.31 and Survey No. 45/8 alone was measured as per the map at
Exh.32. Both the survey numbers being adjoining and there being a
prayer for removal of encroachment, it was necessary to have the suit
fields jointly measured at one and the same time. The legal position in
this regard is clear from the decision in the case of Vijay Shrawan
Shende & others Vs. State of Mah. [2009 (5) Mh.L.J. 279].
09. Even as per the deposition of said Surveyor, it is evident
that the exact encroachment cannot be clearly deduced from the two
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maps. The presence of the Nullah on the boundaries of the land has
not been clearly demarcated. I find that joint measurement of both the
survey numbers was necessary for the purposes of determining
whether the defendant had committed any encroachment. Thus, in
absence of such joint measurement, the individual measurement of
both the lands is not sufficient to come to the conclusion that the
defendant had committed encroachment. Hence, on this count, it is
necessary to have both the fields measured in the light of the law laid
down in Vijay Shrawan Shende & others [supra]. The appellate Court,
therefore, in absence of such joint measurement was not justified in
reversing the decree passed by the trial Court. The substantial
question of law is answered accordingly.
10. Hence, the following order is passed:-
ORDER
[a] The judgment of the appellate Court in Regular Civil
Appeal No. 45 of 2007 as well as that passed by the
trial Court in Regular Civil Suit No. 34 of 2002 are set
aside.
[b] The proceedings are remanded to the trial Court. The
trial Court shall appoint a Court Commissioner after
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considering the decision referred to in para 8 of the
judgment.
[c] The plaintiff shall bear the expenses of measuring the
suit property and it would be open for the trial Court at
the conclusion of the trial to apportion the expenses of
the Commissioner on the basis of its final decision.
[d] As the suit is of the year 2002, the proceedings are
expedited. The parties shall appear before the trial
Court on 09th October, 2017. The suit shall be decided
within a period of six months from the said date with
liberty to the parties to lead further evidence, if they so
desire.
[e] It is clarified that the judgments of both the Courts
have been set aside on the ground that both the
survey numbers have not been jointly measured. The
trial Court shall decide the suit on its own merits and in
accordance with law.
11. Second Appeal is allowed in aforesaid terms. No order as to
costs.
Judge
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