Ramesh Manik Suryawanshi vs Dilip Sakharam Kharate
2021 Latest Caselaw 12846 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                     937 SECOND APPEAL NO.335 OF 2013

                Ramesh s/o Manik Suryawanshi,
                Age 53 years, Occup.Agri.,
                R/o Kautha Tq. Vasmath
                District Hingoli.                         ....Appellant
                                                    (Original Plaintiff)

                VERSUS

                Dilip s/o Sakharam Kharate,
                Age 35 years, Occup. Agri.,
                R/o Kautha Tq. Vasmath
                District Hingoli.                       ....Respondent
                                                  (Original Defendant)
                                      ...
                Advocate for Appellant : Mr. Amit S. Deshpande
                  Advocate for Respondent : Mr. S. V. Munde
                                       ...
                                    CORAM : SMT.VIBHA KANKANWADI, J.

DATE : 08-09-2021

ORAL ORDER :

1. The present appeal has been filed by the original plaintiff

challenging the concurrent findings. He had filed Regular Civil Suit

No.124 of 2002 before Joint Civil Judge, Junior Division, Basmath for

recovery of possession and mesne profits. It was the contention of

the plaintiff that the defendant has encroached to the extent of 14 R

land. The defendant denied it and it was his contention that the notice

of measurement was not served upon him and measurement has done

behind his back. Description of the suit property is not given by the

plaintiff. It was the contention of the defendant that the sale deed of

the defendant is prior in time and the boundaries shown in his sale

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deed are intact and that much portion is in his possession. He also

contended that there is no boundary between his land and the land

of the plaintiff.

2. Parties have led evidence, especially the plaintiff, who had got

the land measured prior to the suit, examined Taluka Inspector of

Land Records. The learned Trial Judge disbelieved the evidence

adduced by the plaintiff and it has been held that the plaintiff has

failed to prove the encroachment. The suit came to be dismissed on

17-03-2010.

3. Plaintiff filed Regular Civil Appeal No.19 of 2010, it was

dismissed by learned District Judge-1, Basmath on 27-06-2012.

Hence, present second appeal.

4. Heard leaned Advocate Mr. A. S. Deshpande for appellant and

learned Advocate Mr. S. V. Munde for respondent.

5. Learned Advocate Mr. A. S. Deshpande for the appellant

submitted that both the Courts below have wrongly discarded the

evidence of appellant/original plaintiff. Substantial questions of law

are arising in this case.

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6. Per contra, learned Advocate Mr. S. V. Munde appearing for

respondent supported the reasons given by both the Courts below

and submitted that taking into consideration the fact that the sale

deed of the defendant is earlier in time and there is no change in his

possession, it cannot be said that he has made any kind of

encroachment.

7. 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 06-09-2001, he filed the suit on 18-07-2002.

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.

Both the Courts below as it appears failed to exercise their power

under Order 26 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 defendant to

remain present at the time of measurement, the land ought to have

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been got measured. Further, it appears that the measurement in

respect of only plaintiff's land has been done and the defendant's

land 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 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 2002, it was decided in the

year 2010. 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

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giving due notice to the defendant and an admitted map ought to

have been got produced on record. Further, it is to be noted that

the learned First Appellate Court has expressed the opinion that

there ought to have been a joint measurement but no such

measurement has been done. 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 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

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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."

8. If we consider the testimony of the Taluka Inspector of Land

Records especially the cross, then it can be seen that PW.2 Subhash

Babarao Kedram had measured Gut No.201 and he has not made a

statement that he had measured the land of the defendant also.

The method of measurement has not been stated, but then he says

that after the measurement he had not fixed the boundaries of Gut

No.201. He also admitted in his cross-examination that the

signature of the defendant is not on notice Exhibit 23. 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

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getting the lands measured once again. Hence, the second appeal

stands partly allowed.

ORDER

1) The second appeal is hereby partly allowed.

2) The Judgment and decree passed by learned Jt. Civil Judge Junior Division, Basmath in RCS No.124 of 2002 dated 17-03-2010 and Judgment and decree passed by learned District Judge-1, Basmath in RCA No.19 of 2010 dated 27-06- 2012, are hereby set aside.

3) The Regular Civil Suit No.124 of 2002 is restored to the file of Jt. Civil Judge Junior Division, Beed with following directions :-

A) After appearance of the plaintiff 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, 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, plaintiff to deposit the requisite charges with the concerned authority within a period of two (02) weeks thereafter.

                                              8                                 SA 335-2013



                 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 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 2002 is being restored today to the File of learned Joint Civil Judge Junior Division, Basmath, 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 28-09-2021.

         8)      No order as to costs.


         9)      The second Appeal stands disposed of.


                                            (SMT. VIBHA KANKANWADI)
                                                      JUDGE
vjg/-.