Bombay High Court
Hariram Tukaram Shinde vs Baliram Bapurao Washimbe And ... on 20 September, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.155 OF 2013
WITH
CIVIL APPLICATION NO.2499 OF 2013
IN SA/155/2013
Hariram Tukaram shinde,
Age 58 years, Occupation Agri.,
R/o Laul No.1 Tq. Majalgaon
Dist. Beed. ....Appellant
(Original deft. No.1)
VERSUS
Baliram Bapurao Washimbe,
Age Major, Occup. Agriculture,
R/o Laul No.1 Tq. Majalgaon
Dist. Beed, and others. ....Respondents
(Original plaintiff)
...
Advocate for Appellant : Mr. V. V Bhavthankar
Advocate for Respondent No.1: Mr. B. S. Kudale
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 20-09-2021
ORAL ORDER :
1. The present appeal has been filed by the original defendant No.1
challenging the perverse findings. Respondent/original plaintiff had
filed Regular Civil Suit No.371 of 2003 before Joint Civil Judge, Junior
Division, Majalgaon, Dist. Beed, for recovery of encroached portion of
5 R. It was the contention of the original plaintiff that the defendants
have encroached to the extent of 5 R land. The appellant/defendant
No.1 denied it and it was his contention that plaintiff in collusion with
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measurement officer has 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 their possession.
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
not proved the encroachment at the hands of defendants. The suit
came to be dismissed on 28-09-2008.
3. Plaintiff then filed Regular Civil Appeal No.88 of 2006, it was
allowed with costs by learned District Judge-1, Majalgaon District
Beed on 10-03-2013. Hence, original defendant No.1 filed present
second appeal.
4. Heard leaned Advocate Mr. V. V. Bhavthankar for appellant
and learned Advocate Mr. B. S. Kudale for respondent No.1.
5. Learned Advocate Mr. V. V. Bhavthankar for the appellant
submitted that learned Trial Court has correctly dismissed the suit of
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present respondent/original plaintiff, but learned First Appellate
Court has wrongly allowed the appeal filed by the original plaintiff.
Substantial questions of law are arising in this case. Per contra,
learned Advocate Mr. B. S. Kudale appearing for respondent No.1
supported the reasons given by First Appellate Court.
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 14-01-2002, he filed the suit in the year 2003.
Therefore, when the defendants in their written statement had
contended that the measurement was got done behind their back
and no notice was served on them, 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 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, it appears that the measurement in respect
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of only plaintiff's land has been done and the defendants 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 2003, it was decided in the
year 2008. 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 defendants and an admitted map ought to
5 SA 155-2013, CA 2499-2013
have been got produced on record. Further, it is to be noted that
the learned First Appellate Court went wrong in considering the plea
of adverse possession tkaen by defendant in written statement. It
would always be in the alternative. Such alternate defence does
not ipso facto amount to admission of title of plaintiff. Whent he fact
of encroachment is disputed, unless it is proved, it will not draw
interference that plaintiff has proved encroachment only on the
ground of possession of disputed portion with defendants. 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 Taluka Inspector of Land
Records then it can be seen that PW.2 Farukkhan Rajdarkha had
measured disputed land only but he has not measured the lands of
defendants. 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 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.
7 SA 155-2013, CA 2499-2013
ORDER
1) The second appeal is hereby partly allowed.
2) The Judgment and decree passed by learned Joint Civil
Judge Junior Division, Majalgaon Dist.Beed in RCS No.371 of
2003 dated 28-09-2008 and Judgment and decree passed by
learned District Judge-1, Majalgaon Dist.Beed in RCA No.155
of 2013 dated 10-01-2013, are hereby set aside.
3) The Regular Civil Suit No.371 of 2013 is restored to the
file of Jt. Civil Judge, Junior Division, Majalgaon Dist. Beed
with following directions :-
A) After appearance of the parties before the Trial
Court, original plaintiff 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.
D) The Court Commissioner shall prepare
measurement map showing the boundaries of the land
and with conclusion as to whether there is any
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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 2003 is being restored today to the File
of learned Joint Civil Judge Junior Division, Majalgaon
Dist.Beed, 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
20-10-2021.
8) No order as to costs.
9) The second Appeal stands disposed of. Pending civil
application stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-.
