Bombay High Court
Vijay S/O Mahadev Gaikwad vs Parasram S/O Bhanu Meshram on 19 January, 2018
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 31 of 2017
with
Second Appeal No. 32 of 2017
A. Second Appeal No. 31 of 2017 :
Yashwant son of Mahdev Gaikwad,
aged about 56 years,
occupation - cultivator,
resident of Bolda,
Post - Koregaon,
Tq. Desaiganj [Wadsa],
Distt. Gadchiroli, ..... Appellant
Org. Plaintiff
Versus
Parasram son of Bhanu Meshram,
aged about 55 years,
occupation - cultivator,
resident of Arattondi,
Post Parastola,
Tq. Arjuni [Mor],
Distt. Gnodia. ..... Respondent
Org. Deft.
*****
Mr. R. M. Pande, Adv., for the appellant.
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Mr. Kaple, Adv., holding for Mr. A. M. Quazi, Adv., for respondent.
*****
B. Second Appeal No. 32 of 2017 :
Vijay son of Mahdev Gaikwad,
aged about 51 years,
occupation - cultivator,
resident of Bolda,
Post - Koregaon,
Tq. Desaiganj [Wadsa],
Distt. Gadchiroli, ..... Appellant
Org. Plaintiff
Versus
Parasram son of Bhanu Meshram,
aged about 55 years,
occupation - cultivator,
resident of Arattondi,
Post Parastola,
Tq. Arjuni [Mor],
Distt. Gnodia. ..... Respondent
Org. Deft.
*****
Mr. R. M. Pande, Adv., for the appellant.
Mr. Kaple, Adv., holding for Mr. A. M. Quazi, Adv., for respondent.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 19th January, 2018
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ORAL JUDGMENT:
01. Admit. With the consent of learned counsel for the parties,
the appeals are taken up for final disposal.
02. Since both these appeals raise an identical substantial
question of law, they are being decided by this common judgment. The
following substantial question of law arises for consideration:-
In absence of proper procedure being followed by the
Surveyor while measuring the suit properties and in
absence of any notice to the adjoining land owners as
well as the defendant, whether the proceedings deserve
to be remanded for fresh consideration?
For sake of convenience, the facts in Second Appeal No. 31 of 2017 are
being referred to.
03. The appellants - Yashwant Gaikwad in Second Appeal No.
31 of 2017 and Vijay Mahadev Gaikwad in Second Appeal No. 32 of
2017 are the original plaintiffs. It is the case of the plaintiff in Regular
Civil Suit No. 15 of 2004 that he is the owner of Gat No. 167
admeasuring 2 hectares 90 Are, while the plaintiff in Regular Civil Suit
No. 16 of 2004 is the owner of Gat No. 170 admeasuring 2 hectares 90
Are. Towards eastern portion of both the fields, it is alleged that the
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defendant - Parasram Meshram has committed an encroachment. This
encroachment is to the extent of 0.22 Are land from Gat No. 167 and
0.18 Are land from Gat No. 170. Hence, the aforesaid suits for removal
of encroachment and possession of that area came to be filed.
04. In the Written Statement, it was denied that any such
encroachment was made.
05. The trial Court decreed both the suits after coming to the
conclusion that there was an encroachment committed by the
defendant. However, the appeals filed by the defendant came to be
allowed on the ground that this encroachment had not been duly
proved. Being aggrieved, the original plaintiffs have filed the aforesaid
appeals.
06. Shri R. M. Pande, learned counsel for the appellants in both
the appeals, submitted without prejudice to his other contentions that
the measurement of the suit properties undertaken by the Surveyor
was not in accordance with the prescribed procedure. Notice had not
been given to the adjoining field owners or to the defendant. This
course as followed by the Surveyor was contrary to the judgment of
learned Single Judge in Vijay Shrawan Shende & others Vs. State
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of Maharashtgra & others [2009 (5) Mh.L.J. 279]. It was urged that
for the purpose of determining the encroachment, the measurement of
the lands in question after ascertaining the boundaries was necessary.
07. Shri Kaple, learned counsel for the respondent, supported
the impugned judgments. According to him, as the plaintiffs had
approached the Court, it was the duty of the plaintiffs to prove the
aspect of encroachment at the instance of the defendant. As the
Surveyor who had measured the suit properties at the behest of the
plaintiffs did not follow the prescribed procedure as urged, the same
could not be at the prejudice of the defendant. The appellate Court
rightly set aside the judgment of the trial Court and it was justified in
dismissing both the suits.
08. I have heard the learned counsel for the parties and I have
perused the evidence on record.
09. For proving the encroachment, the Surveyor was examined
in Regular Civil Suit No. 15 of 2004 below Exh.36. The Surveyor in his
cross-examination admitted that except the plaintiffs, notice was not
given to any other party. The neighbouring land owners as well as the
defendant were not noticed before undertaking the measurement.
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Similar is the nature of his deposition in Regular Civil Suit No. 16 of
2004 at Exh.30.
10. In Vijay Shrawan Shende & others [supra], the manner in
which the aspect of encroachment has to be determined and the
course in that regard that has to be followed has been laid down. On
considering the entire evidence of the Surveyor, I find that the exercise
undertaken by him is not in accordance with the prescribed procedure
or the observations made in the aforesaid judgment. This Court has
held that on account of failure of the Cadestal Surveyor to measure the
suit property properly which failure is not attributable to the parties of
the suit, the proceedings deserve to be reconsidered. Hence, in the
light of the evidence on record and the law laid down as aforesaid, the
substantial question of law is answered by holding that the
proceedings deserve to be remanded for reconsideration.
11. Hence, the following order is passed:-
[a] The judgment dated 22nd October, 2016 in Regular Civil
Appeal No. 66 of 2007 and the judgment dated 22nd
October, 2016 in Regular Civil Appeal No. 67 of 2007,
both passed by learned District Judge-2, Gondia, are
quashed and set aside. The proceedings are remanded
to the trial Court to decide the same after following the
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course as prescribed in the case of Vijay Shrawan
Shende [supra].
[b] Both the parties shall equally bear the costs of
measuring the suit properties. The plaintiffs would be
entitled to costs of aforesaid measurement in case they
finally succeed in the suits.
[c] The parties shall appear before the trial Court on 12th
February, 2018.
[d] The suits shall be decided expeditiously and by the end
of December, 2018.
12. Second Appeals are allowed in aforesaid terms with no order
as to costs.
Judge
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