Tukaram Bapu Nikode (Dead) ... vs Mukharu Vakatu Nikode
2021 Latest Caselaw 14560 Bom

                                                    1                   5 sa 538-2019.odt

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH AT NAGPUR

                         SECOND APPEAL NO. 538/2019


 1) Tukaram Bapu Nikode (dead)
    Through Legal Representative
    Ramesh Tukaram Nikode
    Aged 50 years, Occu: Agriculturist
    R/o Antargaon, Tah. Saoli,
    District- Chandrapur.                                    .....APPELLANT
                                                                  (ORIGINAL DEFT.)

                               ...V E R S U S...

 1) Mukharu Vakatu Nikode,
    Aged 69 years, Occu: Agriculturist,
    R/o Antargaon, Tah. Saoli,
    Distt. Chandrapur.                                        ...RESPONDENT
                                                                  (ORIGINAL PLTFF.)
 -------------------------------------------------------------------------------------------
 Mr. Anil A. Dhawas, Advocate for appellant.
 -------------------------------------------------------------------------------------------
        CORAM                      :- S.M. MODAK, J.

        DATED                      :- 06/10/2021


 ORAL JUDGMENT


                Heard finally.

2. I have heard learned Advocate Shri Dhawas at great

length on more than one occasion. The appellant is an unsuccessful

defendant. Plaintiff is the owner of CTS No.461 and defendant is

owner of CTS No.455 and 456. They are situated at Mouza

Antargaon, Tah. Saoli, District Chandrapur. The plots of defendant

2 5 sa 538-2019.odt

are situated on northern side of plaintiff's plot. The defendant has

erected a hut/structure admeasuring 32 sq.mtrs on plaintiff's plot.

(on evidence it was found of 30 sq.mtrs). Hence plaintiff filed a

suit. Defendant's defence was of denial and plea of adverse

possession. The suit filed by the respondent for possession by

removal of encroachment and two kinds of injunctions was

decreed on 18/01/2016. The defendant was directed to hand over

the vacant possession of encroached portion of 30 sq. mtrs. When

defendant filed first appeal, he could not convince the Court and

his appeal was dismissed. That is how he has filed present second

appeal.

3. The only substantial question of law argued before this

Court is;

"Joint measurement of both the lands i.e. land belonging to plaintiff and land belonging to defendant was very much required " and

unless it has been carried out, it is difficult to conclude that the

alleged encroachment falls on the land belonging to the plaintiff.

Earlier Appeal

4. During the hearing, it was revealed that prior to

decision of the suit on 18/01/2016, Trial Court has also decided

3 5 sa 538-2019.odt

the suit on 26/08/2005. Against said judgment, there was Regular

Civil Appeal No.211/2005. The First Appellate Court at that time

on 15/01/2014 was pleased to remand the suit and was pleased to

appoint TILR by invoking the provisions of Order 26 Rule 9 of

Code of Civil Procedure.

Documents

5. The appellant was kind enough to produce the

necessary documents as per the Pursis Stamp No.01/2021. With

the assistance of learned Advocate for the appellant, I have

perused the said judgment. At that time, there was evidence of one

Anandrao who was also a Government Surveyor. He has also

measured the suit land. However, the First Appellate Court at that

time found that there were certain lacuna in his measurement.

That is why fresh directions were given. The directions given in

paragraph no.(ii) are reproduced below:

"(ii) The Court Commissioner shall take joint measurement in presence of both the parties, their Advocates and adjoining land owners and shall prepare authenticate map by showing boundaries of both the lands of parties and encroachment if any."

                                             4                5 sa 538-2019.odt

                               Evidence of Surveyor

6. After that, surveyor was appointed and he did measure

the land. Plaintiff was cautious enough to examine him before the

Trial Court. He is one Prasad Gangadhar Dhakat. Through him, the

map drawn by him at Exhibit-88 is also proved. Learned Advocate

has read over his evidence. He made feeble attempt to point out

that there is a room for making grievance that said surveyor,

Prasad Dhakate has not measured both the lands as directed by the

First Appellate Court on 15/01/2014.

7. On this background, when the evidence and map are

perused, there is no scope for accepting that grievance. It is for the

reason that, in his evidence he has clarified who were the persons

present and amongst them plaintiff and defendant both were

present. The concerned City Survey numbers are 461 and 456. He

has noticed encroachment of 30 sq. mtrs. in the land bearing CTS

No.456. He has also opined what ought to have been the

measurement of CTS No.461 and of CTS No.456. He was

thoroughly cross-examined. On its perusal, we do not find that any

grievance was made to him that both the lands were not measured.

                                          5                5 sa 538-2019.odt

                                First Appeal

8. On this background, the Trial Court decreed the suit as

per the judgment dated 18/01/2016. The Trial Court had given the

weightage to the evidence of this surveyor and then concluded

about the encroachment of about 30 sq.mtrs. Whereas the First

Appellate Court after re-appreciating the evidence concluded that

there is no scope for interference in the findings given by the Trial

Court. The First Appellate Court also noticed the fact that after

remand when this surveyor is appointed, defendant has not

entered into the witness box (paragraph no.28). Even the First

Appellate Court found "pleading of adverse possession were

inadequate". That is how the first appeal was dismissed. From the

First Appellate Court's judgment even it does not reveal that there

was a grievance made on behalf of the defendant that surveyor has

not carried out joint measurement.

9. For the above discussion, this Court does not feel that

proposed substantial question of law does arise. This court feels

that there is no substantial question of law involved. There is no

perversity in the findings recorded by both the Courts below.

Hence the appeal stands dismissed. As held by the Hon'ble

Supreme Court in case of Ashok Rangnath Magar Vs. Shrikant

6 5 sa 538-2019.odt

Govindrao Sangvikar reported in (2015) 16 Supreme Court Cases

763, there is no need to formulate substantial question of law, if

this Court feels that such substantial question of law is not

involved. (para 18)

JUDGE R.S. Sahare