Manjaji Ganpati More And Others vs Bhujangrao Irba More
2021 Latest Caselaw 1843 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                       937 SECOND APPEAL NO.2 OF 2018
                                   WITH
                          CA/90/2018 IN SA/2/2018

        1)      Munjaji s/o Ganpati More,
                Age 52 years, Occup.Agri.,
                R/o Trikut Tq. And Dist. Nanded.

        2)      Madhav s/o Munjaji More,
                Age 30 years, Occup.Agri.,
                R/o As above.

        3)      Ramdas s/o Munjaji More,
                Age 28 years, Occup.Agri.,
                R/o As above.                               ....Appellants
                                                     (Original Defendants)
                VERSUS

                Bhujangrao s/o Irba More,
                Age 72 years, Occup. Agri.,
                R/o Brahmanwada, Nanded
                Tq. And Dist. Nanded.                       ....Respondent
                                                     (Original Plaintiff)
                                      ...
                Advocate for Appellants : Mr. Rathi Swapnil S.
               Advocate for Respondent : Mr. Kadam Gajanan G.
                                      ...
                                      CORAM : SMT.VIBHA KANKANWADI, J.

DATE : 28-01-2021

ORAL ORDER :

1. Appellants are the original defendants who are challenging the

concurrent findings. Respondent is the original plaintiff who has filed

Regular Civil Suit No.877 of 2012 before learned Civil Judge, Junior

Division, Nanded for recovery of possession of the encroached portion and

perpetual injunction. The suit was decreed on 27-06-2014 by learned 2 nd

Joint Junior Division, Nanded, thereby it was directed to the defendants

2 SA 2-2018

that they should hand over the vacant possession of 31 R land shown in

the map of Taluka Inspector of Land Records (Exhibit 42) with yellow

colour within a period of three months to the plaintiff. The

consequential prayer of injunction was also granted and separate

inquiry for mesne profits was directed. It will not be out of place to

mention here that the counter claim of the defendants was rejected

which was in respect of perpetual injunction.

2. The original defendants challenged the said Judgment and decree

in Regular Civil Appeal No.102 of 2014 before learned District Court,

Nanded. The appeal was heard by learned Ad-hoc District Judge-3 and

the appeal came to be dismissed on 15-02-2017. Hence, this second

appeal.

3. Heard learned Advocate Mr. Rathi Swapnil S. representing

appellants and learned Advocate Mr. G. G. Kadam representing

respondent.

4. It has been vehemently submitted on behalf of the appellants

that both the Courts below failed in considering the basic

requirements of law that there has to be an admitted map before

decree for removal of encroachment can be passed. Plaintiff is the

owner of Gut No.6 whereas the defendants are owner of Gut No.5

3 SA 2-2018

situated in village Trikut Taluka and District Nanded. Plaintiff

contended that his land Gut No.6 admeasuring 3 H 74 R and it has

been described by boundaries in plaint. He had come with a case

that he realize that there is damage to the Western boundary

between his land and the land of defendants in the month of May

2011, and therefore, he filed an application to Taluka Inspector of

Land Records for measurement. The record shows that the Taluka

Inspector of Land Records measured the land on 18-02-2012 and

demarketed and fixed the boundaries on 09-03-2012. It is stated

that the Taluka Inspector of Land Records found that the defendants

have made encroachment to the extent of 31 R, and therefore, he

filed the suit on 13-06-2012. That means, the map which was

drawn by Taluka Inspector of Land Records was prior to suit. The

defendants resisted the claim by filing their written statement and

denied all the allegations in the plaint. On the contrary, they had

raised counter claim and prayed for injunction. In the counter claim

the property was shown as Gut No.5 admeasuring 3 H 80 R situated

in the same village.

5. It has been further submitted on behalf of the appellants that

after the issues were framed, parties have led oral as well as

4 SA 2-2018

documentary evidence. The learned Advocate for the appellants has

taken this Court through the testimony of plaintiff's witness Uttam

Ramji Murmure (Exhibit 41) who was the then Taluka Inspector of

Land Records. It is submitted after reading his entire testimony that

the Taluka Inspector of Land Records had not issued notices to the

adjoining owners as he has clearly stated that there is no proof in

his file regarding service of notice to the adjoining owners. Further

in his cross examination he has admitted that he has not measured

the Gut No.6 from its Eastern, Southern and Northern direction.

Further it is not in dispute that old Survey number was divided into

two parts as Gut No.5 and 6. The original Survey No.6 was

admeasuring 18 Acres 28 Gunthas having 4 Gunthas barren. The

Sub-Division No.1 measures 9 Acres 15 Gunthas and No.2

admeasures 9 Acres 12 Gunthas. The maps which were drawn by

Consolidation Officer were not in the file of the Taluka Inspector of

Land Records. He was not able to say the measurement of Gut No.5

which belongs to the defendants. He does not say that he had

measured Gut No.5. On the basis of such defective evidence, both

the Courts below have come to a wrong conclusion that the

defendants have encroached on the land belonging to the plaintiff.

There was no attempt at both the levells to have an admitted map.

5 SA 2-2018

He, therefore, submitted that both the Judgments and decrees

deserve to be set aside. He relied on the decision by this Court in

Ushabai w/o Sharadchandra Bannore v. Wasudeo Baliramji Mehare

and others, reported in 2004 (2) Mh.L.J. 594 (Bench At Nagpur),

Niranjanabai Chandrakant Vira v. Pramilabai Balkrishna Zade and

Another, reported in 2004 (6) Bom.C.R. 829 and Vachhalabai w/o

Kundlik Gavane v. Chinkaji Malhari Jadhav (Second Appeal No.662

of 2011, decided by this Court on 28-03-2012). Relying these

decisions, the learned Advocate for the appellants prayed that the

matter deserves to be remanded for having an admitted map.

6. Learned Advocate Mr. Kadam representing the respondent/

plaintiff strongly supported both the Judgments, especially the

Judgment by the learned Trial Judge, and submitted that though the

file which was brought by the learned Taluka Inspector of Land

Records was not containing the copies of the notice that was issued

to the defendants, yet from the panchanama that was executed and

also from the cross-examination of the plaintiff taken on behalf of

the defendant, it was very much clear that the defendants had the

knowledge about the measurement that would be undertaken. The

plaintiff admits that there was dispute between him and the plaintiff

6 SA 2-2018

admits that there was dispute between him and the defendant at the

time of measurement and it is also the subsequent statement that

dispute was after the measurement was concluded. Under such

circumstance, the defendants had sufficient knowledge about the

measurement, now they cannot take disadvantage and submit that

since the file had no such acknowledgement, there was no notice to

them.

7. It has been further submitted on behalf of the respondent that

the measurement that has been carried out by PW. Murmure is

perfectly legal. Map (Exhibit 42) would make the position of the

land clear. There was no scope for encroachment from the Northern

side. As there is the boundary of the village and after the points

were fixed as per the procedure, the conclusion has been arrived at

by the Taluka Inspector of Land Records that the defendants have

made encroachment to the extent of 31 R on the land of plaintiff.

No substantial question of law is involved in this case, and therefore,

he prayed for dismissal of the appeal.

8. At the outset, it can be seen that the suit was based on the

measurement that was carried out prior to the date of the suit. The

measurement was carried out on 18-02-2012 and the boundaries

7 SA 2-2018

were fixed on 09-03-2012, whereas the suit was filed on 13-06-

2012. After the defendants had filed the written statement denying

the claim of the plaintiff, neither the plaintiff nor the concerned

Court found it necessary to have an admitted map on record.

Further even after the testimony of PW. Murmure, the Taluka

Inspector of Land Record was concluded, yet there was no such

attempt. Further it can be seen from the Judgment of the First

Appellate Court that there was no such attempt during the pendency

of the appeal to have an admitted map on record. Therefore, now it

is required to be seen as to whether the measurement that was

carried out by the Taluka Inspector of Land Records and the map

drawn by him Exhibit 42 was sufficient or it requires the matter to

be remanded.

9. The testimony of Taluka Inspector of Land Records PW.

Murmure would show that in his examination-in-chief he states that

he had issued notices to the adjoining owners of Gut No.6. The first

and the foremost fact that is required to be considered is that the

application that was filed by the plaintiff was in respect of

measurement of Gut No.6 only. In his entire examination-in-chief

he has not stated that he had measured Gut No.5 also. Now it can

8 SA 2-2018

be seen from the cross-examination of this witness that the

measurement of Gut No.5 was also necessary taking into

consideration the fact that Gut No.5 and 6 were the part of same

survey number. In his cross-examination this witness says that

there is no 7/12 extract of Survey No.6, but then he says that, the

original land of Survey No.6 was admeasuring 18 Acres 27 Gunthas

comprising of 4 Gunthas of barren land. He gives two sub-divisions

of said survey number, but then he says that, in his file there is no

map drawn by the Consolidation Officer. Definitely the boundaries

those were fixed by dividing the original survey number ought to

have been considered by him. Further in his examination-in-chief

itself he ought to have stated about the method of measurement

carried out by him and then after measuring there was a super

imposition technique adopted by him to arrive at a conclusion that

there is encroachment. Further in his cross-examination he has

stated that he had not taken the 7/12 extract of Gut No.5, and

therefore, he was not even able to tell the measurement of Gut

No.5. Here, at this stage reliance can be placed on the observations

in the decision of Ushabai w/o Sharadchandra Bannore (Supra)

wherein the elaborate procedure as well as its importance was laid

down : -

9 SA 2-2018

"The maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a map is accurate lies on the party who produces it. The maps must be proved by the person who has prepared them. In case of dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case overall again."

Further, in the subsequent Judgments, the same ratio has been led

down and further this Court Bench at Nagpur has taken further view

that if the Trial Court fails to take such map on record in view of

decision in Ushabai w/o Sharadchandra Bannore (Supra) then, the

First Appellate Court should make an endeavour to have the

admitted map on record. The relevant observations in,

Sulemankhan s/o Mumtajkhan and Others Versus Smt.

Bhagirathibai wd/o. Digamber Asalmol and Another, reported in

2014 (5) ALL MR 552, are reproduced here,

"This Court has time and again expressed opinion about the necessity of duly drawn measurement plan/ map in any suit in which there is a boundary

10 SA 2-2018

dispute. The Trial Court as well as 1 st Appellate Court, which are Courts of Facts, are duty-bound to ascertain that a map is drawn to the appropriate scale by competent Government official from the office of TILR or DILR, as the case may be, so that measurement of suit property is carried out in presence of the parties after due notice to them or even if they are absent, so as to ensure that the suit property is properly measured, boundaries are fixed and boundary dispute is finally settled by producing map in the Court by the plan maker who can prove its genuineness by deposing in support of such plan/ map, if it is so necessary in the absence of admission for exhibiting the map."

The said ratio in case of Sulemankhan (Supra) was reiterated

in Meenadevi w/o Vasdev Vatnani Versus Narmadabai @ Leelabai

w/o Gopaldas Zanwar, reported in [2015 (6) Mh.L.J.] 578.

Therefore, it is required to be seen from these pronouncements that,

there was a necessity to have a map drawn in the suit which can be

said to be an admitted map.

This ratio is continued till recently delivered Judgments by this

Court in Arunrao Jagannatrao Deshmukh v. Rajabhau s/o Manikrao

Deshmukh (Second Appeal No.294 of 2017, decided on 02-04-2019)

and in Chandkhan Faridkhan Patel and Others v. Mehrunissa Begum

11 SA 2-2018

w/o Gaffurkhan Patel and Another (Second Appeal No.67 of 2017,

decided on 22-07-2019). Therefore, this Court time and again is

impressing on the Trial Courts that they should have an admitted

map in a suit for removal of encroachment and possession, but it

appears that the said procedure is still not followed. Under such

circumstance, as there is a necessity of admitted map in this case

and the fact that the Taluka Inspector of Land Records had not

measured land Gut No.5 also, the matter deserves remand to the

Trial Court.

10. In view of the fact that this Court is of the opinion that the

matter deserves remand and this Court is not strictly admitting the

second appeal as contemplated under Section 100 of Code of Civil

Procedure, there is no necessity to formulate substantial question of

law, however necessary directions needs to be given to the learned

Trial Judge in view of the above said legal pronouncements. Hence,

following order.

ORDER

1) The second appeal is hereby partly allowed.

2) The Judgment and decree passed by learned 2nd Jt. Civil Judge Junior Division, Nanded in RCS No.877 of 2012 dated 27-06-2014 and Judgment and decree passed by

12 SA 2-2018

learned Adhoc District Judge-3, Nanded in RCA No.102 of 2014 dated 15-02-2017, are hereby set aside.

3) The Regular Civil Suit No.877 of 2012 is restored to the file of 2nd Jt. Civil Judge Junior Division, Nanded with following directions : -

A) After appearance of the plaintiff/ respondent before the Trial Court, appellant to file application for appointment of Court Commissioner under Order XXVI Rule 9 of Code of Civil Procedure, within a period of three (03) weeks.

B) The Trial Court shall appoint Taluka Inspector of Land Records / (Deputy Superintendent of Land Records) as Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908.

C) After the Court Commissioner is appointed, plaintiff to deposit the requisite charges with the concerned authority within a period of two (02) weeks thereafter.

D) The Court Commissioner shall prepare measurement map showing the boundaries of the land and with conclusion as to whether there is any encroachment or not and submit report before the Trial Court within a period of four months, after the order/ writ is given to the Commissioner.

4) Failure on the part of the plaintiff to file such

13 SA 2-2018

application for appointment of Court Commissioner, should be taken adversely, which may also result in dismissal of the suit.

5) The Trial Court to decide the suit afresh by giving opportunity to both the parties to lead evidence, if necessary and so advised.

6) Since the suit of 2012 is being restored today to the File of learned 2nd Joint Civil Judge Junior Division, Nanded, the Trial Court should give priority to dispose of the suit and to decide the same within a period of ONE YEAR from the receipt of the writ or placing of authentic copy of the order of this Court before it, whichever is earlier.

7) Both the parties to appear before the learned Court on 08-02-2021.

                 8)       No order as to costs.


                 9)       Civil Application No.90 of 2018 in SA/2/2018 stands
                 disposed of.



                                            (SMT. VIBHA KANKANWADI)
                                                      JUDGE


vjg/-.