Bombay High Court
Khanderao Keshav Dhande vs Sunanda Gopal Bhirud on 5 October, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.290 OF 2013
WITH
CIVIL APPLICATION NO.1277 OF 2013
IN SA/290/2013
Khanderao S/O Keshav Dhande ,
Age 75 years, Occup.Agriculture,
R/o Nimbhora Tq. Raver Dist.
Jalgaon. ....Appellant
(Original defendant)
VERSUS
Sunanda w/o Gopan Bhirud,
Age Major, Occup. Agriculture,
R/o Nimbhora Tq. Raver Dist.
Jalgaon. ....Respondent
(Original plaintiff)
...
Advocate for Appellant : Mr. L. V. Sangeet h/f M.L.Sangeet
Advocate for Respondent : Mr. S. P. Shah
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 05-10-2021
ORAL ORDER :
1. The present appeal has been filed by the original defendant
challenging the concurrent findings. Respondent/original plaintiff had
filed Regular Civil Suit No.25 of 1994 before Joint Civil Judge, Junior
Division, Raver for possession and mesne profits. It was the
contention of the original plaintiff that the defendants have encroached
to the extent of 6 R land. The appellant/defendant denied it and it was
his contention that plaintiff in collusion with measurement officer has
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shown the encroachment. The notice of measurement was not
served upon him and measurement has done behind his back and
prior to the filing of the suit. It was the contention of the appellant/
defendant that the boundaries are intact and that much portion is in
his possession.
2. Parties have led evidence, especially the plaintiff, who had got
the land measured prior to the suit, examined Cadestral Surveyor
Suresh Onkar Mali. The learned Trial Judge believed the evidence
adduced by the plaintiff and it has been held that the plaintiff has
proved the encroachment at the hands of defendant. The suit came
to be partly decreed on 17-09-2004.
3. Defendant filed Regular Civil Appeal No.277 of 2004, it was
dismissed by learned Principal District Judge-5 and Assistant
Sessions Judge, Jalgaon, on 15-03-2011. Hence, present second
appeal.
4. Heard leaned Advocate Mr. L. V. Snageet holding for learned
Advocate Mr. M. L. Sangeet for appellant and learned Advocate Mr.
S. P. Shah for respondent.
5. Learned Advocate Mr. L. V. Sangeet for the appellant
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submitted that both the Courts below have wrongly discarded the
evidence of appellant/original defendant. Substantial questions of
law are arising in this case. Per contra, learned Advocate Mr. S. P.
Shah appearing for respondent supported the reasons given by both
the Courts below.
6. At the outset, it appears that both the Courts below have not
adhered to the decisions of this Court when in any suit there is a
question of encroachment. It is to be noted that the plaintiff had got
his land measured on 16-12-1993, he filed the suit in the year 1994.
Therefore, when the defendant in his written statement had
contended that the measurement was got done behind his back and
no notice was served on him, there ought to have been an
endeavour basically by the Trial Court first and in case of failure of
the Trial Court, by the First Appellate Court, to get an admitted map.
The learned First Appellate Court has considered that the notice was
issued to defendant by UPC on correct address, hence it ought to
have been received by him. Learned First Appellate Court may be
justified in drawing such inference but when defendant has denied it
on oath then there ought to have been endeavour to get an
admitted map on record. Learned First Appellate Court failed to
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consider that defendant's land was not measured at all by Cadastral
Surveyor. Both the Courts below as it appears failed to exercise
their power under Order 26 of the Code of Civil Procedure to appoint
Court Commissioner by giving opportunity to both sides i.e. asking
the plaintiff to deposit the cost of remeasurement and by giving
notice in advance to the defendants to remain present at the time of
measurement. Further, when the measurement in respect of only
plaintiff's land has been done and the land of defendant has not
been measured, that is also one of the point that could have been
got cured when the measurement could have been got done of both
the lands by appointing a Court Commissioner. In a catena of
Judgments, especially in Ushabai w/o Sharadchandra Bannore v.
Wasudeo Baliramji Mehare and others, reported in 2004 (2) Mh.L.J.
594 (Bench At Nagpur), it has been held that,
"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
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such a map, the decree is probably meaningless and
execution means virtually starting the case overall
again."
Though the suit was filed in the year 1994, it was decided in the
year 2004. Therefore, the learned Trial Court ought to have
considered this Judgment and ought to have appointed Taluka
Inspector of Land Record as Court Commissioner once again by
giving due notice to the defendant and an admitted map ought to
have been got produced on record. The First Appellate Court was
not powerless to direct a joint measurement and to have that
measurement on record which can be said to be an admitted map
after the measurement. This Court would rely on the observations
of the earlier Judgment of this Court 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
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
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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."
7. If we consider the testimony of the Cadestral Surveyor then it
can be seen that PW.1 Suresh Mali had measured disputed land only
but he has not measured the land of defendant. When all these
shortcomings were noticed, especially by the Trial Court, the Trial
Court ought to have appointed a Court Commissioner. Since the suit
was for recovery of possession and mesne profit then only the
expert is expected to be the Court Commissioner. There ought to
have been a joint measurement before concluding whether there is
encroachment or not. As aforesaid, even the First Appellate Court
failed to exercise its powers, however, since this Court cannot shut
its eyes, the matter deserves to be remanded to the Trial Court for
getting the lands measured once again. Hence, the second appeal
stands partly allowed.
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ORDER
1) The second appeal is hereby partly allowed.
2) The Judgment and decree passed by learned Jt. Civil
Judge Junior Division, Raver in RCS No.25 of 1994 dated 17-
09-2004 and Judgment and decree passed by learned District
Judge-5, Jalgaon in RCA No.277 of 2004 dated 15-03-2011,
are hereby set aside.
3) The Regular Civil Suit No.25 of 1994 is restored to the
file of Jt. Civil Judge Junior Division, Raver with following
directions :-
A) After appearance of the parties before the Trial
Court, original defendant to file application for
appointment of Court Commissioner under Order XXVI
Rule 9 of Code of Civil Procedure, within a period of
two(2) weeks from the date of appearance before
learned Trial Court for getting the lands measured.
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,
defendant to deposit the requisite charges with the
concerned authority within a period of two (02) weeks
thereafter.
D) The Court Commissioner shall prepare
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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 defendant to file such
application for appointment of Court Commissioner, should be
taken adversely, against him.
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 1994 is being restored today to the File
of learned Joint Civil Judge Junior Division, Raver, 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 Trial Court
on 12-11-2021.
8) No order as to costs.
9) The second Appeal stands disposed of. Pending civil
application stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-.
