Bombay High Court
Dharubai Sambhaji Udhane vs Motiram Chudaman Yalhare on 12 October, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
930 SECOND APPEAL NO.348 OF 2021
WITH
CA/8686/2021 IN SA/348/2021
DHARUBAI SAMBHAJI UDHANE
VERSUS
MOTIRAM CHUDAMAN YALHARE
...
Advocate for Appellant : Mr. Pathan Hamzakhan I.
R/1, 2 Served
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 12-10-2021.
ORDER :
1. Heard learned Advocate Mr. H. I. Pathan for appellant.
2. The appellant is the original plaintiff who had filed Regular Civil
Suit No.21 of 2004 for removal of encroachment and possession as
well as declaration. The learned Civil Judge, Junior Division, Kalamnuri
partly decreed the suit. Plaintiff was declared owner of the suit land
and the defendant was directed to hand over the possession of 11 R
land from the Northern side to the plaintiff within three months.
3. The original defendant challenged the said Judgment and decree
in Regular Civil Appeal No.16 of 2015. Learned Adhoc District Judge-1,
Hingoli partly allowed the appeal and confirmed the decree of
2 SA 348-2021
ownership, however set aside the decree passed by the Trial Court
for removal of encrochment and handing over of vacant possession
of 11 R land. Hence, this second appeal.
4. It appears that earlier there was no proper measurement and,
therefore, the matter was remanded by the District Court for joint
measurement, and after the joint measurement was carried out, it is
stated that neither the plaintiff nor the defendant took objection.
Therefore, on the basis of the report of the Court Commissioner, the
Trial Court partly decreed the suit. However, it appears that the
First Appellate Court set aside the part of the decree on the ground
that the Court Commissioner was not examined. It also appears
that submission was made on behalf of the respondent/original
plaintiff before the First Appellate Court that since the report is
admissible in evidence vide Order 26 Rule 10 (2) of the Code of Civil
Procedure, examination of the Cadastral Surveyor is not required,
yet the report appears to have not been considered by the First
Appellate Court. Under such circumstances, the substantial question
of law is arising in this case. Hence, the second appeal stands
admitted.
5. Following are the substantial questions of law :-
3 SA 348-2021
A) Whether the First Appellate Court erred in not
considering the provisions of Order 26 Rule 10 (2) of the
Code of Civil Procedure which provides that the report of
the Court Commissioner and the evidence taken by him
(but not the evidence without report) shall be the
evidence in the suit and shall form part of the record ?
B) Whether the First Appellate Court was justified in
reversing the decree in respect of removal of
encroachment to the extent of 11 R land ?
C) Whether interference is required ?
6. Issue notice to the respondent, returnable on 01-02-2022.
7. Call for record and proceedings.
8. Civil Application No.8686 of 2021 for 'Stay' stands withdrawn
on the statement made by learned Advocate for the applicant.
Hence, said application stands disposed of as withdrawn.
9. Permission is granted to file private paper book.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
