Bombay High Court
Pushpa Vishnu Lande And Another vs Mhatu Bapu Lande And Others on 20 August, 2021
Bench: Mangesh S. Patil
925.WP.7263.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7263 OF 2015
1. Pushpa Vishnu Lande,
Age : 52 years
2. Thakubai Haushiram Lande,
Age : 63 years, ... Petitioners
(Org. Plaintiffs
in RCS 116/2007
Both representing through power
of Attorney, Vishnu Thakaji Lande,
Age 62 years, Occupation Agricultural.
Occupation of both the petitioners :
Agricultural & Household,
Both R/o - Village Vaghapur,
Tal - Akole, Dist - Ahmednagar.
VERSUS
1. Mhatu Bapu Land,
Age : 44 years
2. Aashabai Mhatu Lande,
Age : 38 years,
3. Umaji Bapu Lande,
Age : 64 years, ... Respondents
(Org Defendants
in RCS 116/2007
Occupation of all : Agricultural,
all R/o Village Vaghapur, Tal - Akole,
Dist - Ahmednagar.
...
Advocate for Petitioners : Mr. Bhide Vinod Y.
Advocate for Respondents Nos. 1 to 3 : Mr. S.K. Shinde
...
CORAM : MANGESH S. PATIL, J.
DATE : 20.08.2021
925.WP.7263.15.odt
ORAL JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. The
learned advocate Mr. Shinde for the respondents waives service. On the
request of the parties, the matter is heard finally at the stage of admission.
2. The petitioners are the plaintiffs claiming possession of an
immovable property allegedly encroached upon by the respondents. By
filing an application under Order XXVI Rule 9 of the Code of Civil Procedure
(Exhibit-73) they prayed for appointment of the Deputy Superintendent of
Land Records, Akole as a court commissioner and requested for carrying out
measurement of their land Gat No.543 as also the land of the respondents
bearing Gat No.499. By the impugned order the Application has been
rejected. Hence this Writ Petition.
3. The learned advocate Mr. Bhide for the petitioners would
submit that pursuant to the mandate of the Bombay High Court Amendment
in Rule 3 of Order VII of the Code of Civil Procedure, the petitioners have
filed the Suit by undertaking an exercise of getting their land measured
through a T.I.L.R., and the map was also annexed to the plaint. The parties
went for trial. The Surveyor was examined as a witness by the petitioners.
However some lapses which had occurred in that measurement were
brought on record during his cross-examination. It is thereafter that the
petitioners realized that in order to establish the encroachment they need to
get the lands measured once again through a court commissioner. It is not a
case of filling any lacuna. They had bona fide got the land measured
privately and have come to a prima faice conclusion based on that about the
respondents having made encroachment.
4. It is, therefore, to enable the Court to arrive at a just decision as
to the extent of the encroachment the lands need to be measured as prayed
for by appointing a court commissioner. That is the only way out now for
the petitioners and even for the Court to decide the dispute finally. He
925.WP.7263.15.odt
would submit that under similar set of facts this Court in Writ Petition
No.217/2019 by the order dated 02.08.2021 has conceded to similar request
of the petitioners therein. He would also place reliance upon the following
decisions:
Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade;
2004(2) Mh.L.J. 722
Sukhdeo Parashramji Bhugul (Dr.) Vs. Wamanrao Nagorao
Charhat; 2004 (3) Mh.L.J. 724
Manohar Mahadeorao Pargrut Vs. Sunanda Ramdas Tharkar; Writ
Petition No.487/2008 decided on 01.04.2008
Vijay s/o Shrawan Shende Vs. State of Maharashtra; SA
No.97/2009 decided on 04.05.2009
5. The learned advocate for the respondents would submit that it
is a clear case of filling the lacuna. The clinching admission has been given
by the Surveyor and to rob of the respondents of such admission that an
attempt is being made to resort to the appointment of a court commissioner.
A serious prejudice would be caused to the respondents if the petitioners'
application is allowed which has been rightly rejected by the learned Judge.
6. I have carefully gone through the rival submissions and the
papers. True it is that the Court Commissioner is not to be appointed to
create evidence or collect it either. However, as is pointed out by the
learned advocate Mr. Bhide for the petitioners, the petitioners are not
harping in dark. Even before filing of the Suit they had undertaken that
exercise by getting the land measured. It is thereafter that they had reached
the conclusion about the respondents having made encroachment.
7. As can be seen, the Surveyor who had carried out private
measurement specifically admitted not to have issued any notice to the
respondents before carrying out the measurement. He therefore admitted
not to have measured their land while carrying out the measurement. If
925.WP.7263.15.odt
such is the state of affairs, it would certainly be difficult for the Court to
decide as to if really there is any encroachment as has been claimed by the
petitioners. It is in order to enable the Court to conclusively determine the
dispute that the Court Commissioner now would come in aid rather than
creating any obstacles.
8. It is apparent that the petitioners are not seeking to measure
their own land but even are asking to carry out measurement of land of the
respondents. If that be so, the request, indeed, seems to be bona fide.
9. The petitioners apparently cannot be attributed with delay particularly
when they have filed the suit and are awaiting possession of the alleged
encroached portion. Therefore no prejudice is likely to be caused to the
respondents by allowing the Court Commissioner to be appointed and the
lands to be got measured.
10. Ignoring all the aforementioned state of affairs, the learned
Judge seems to have got swayed away by the mere fact that some
admissions have been given by the Surveyor which would demonstrate the
measurement carried out was illegal and would further cause delay.
11. The Writ Petition is allowed. The impugned order is quashed
and set aside. The lower court shall now allow the application and issue
appropriate directions.
12. The Rule is made absolute.
(MANGESH S. PATIL, J.)
habeeb
