Dashrath Baburao Mahatre And ... vs Vithoba Tatyaba Kadam And Another
2021 Latest Caselaw 13515 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                      SECOND APPEAL NO.319 OF 2013
                                  WITH
                    CIVIL APPLICATION NO.6434 OF 2013
                             IN SA/319/2013

                Dashrath s/o Baburao Mahatre,
                Ave Major, Occupation Agri.,
                R/o Devdi Tq. Majalgaon Dist. Beed.
                And Another                              ....Appellants
                                                  (Original defendants)
                VERSUS

                Vithoba s/o Tatyaba Kadam,,
                Age Major, Occup. Agriculture,
                R/o Devdi Tq. Majalgaon
                Dist. Beed And Another                         ....Respondents
                                                          (Original plaintiff)
                                   ...
               Advocate for Appellants : Mr. V. D. Salunke
             Advocate for Respondent No.1: Mr. V. P. Savant
          Advocate for Respondent No.2 : Mr. A. S. Doke (Absent)
                                   ...
                                         CORAM : SMT.VIBHA KANKANWADI, J.

DATE : 21-09-2021 ORAL ORDER :

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

challenging the perverse findings. Respondent/original plaintiff had

filed Regular Civil Suit No.201 of 1998 before Joint Civil Judge, Junior

Division, Majalgaon, Dist. Beed, for perpetual injunction. It was the

contention of the original plaintiff that the defendants are trying to

obstruct his peaceful possession over 9 R land of Gut No.143 of village

Devdi Tq. Majalgaon. The appellants/defendants denied it and it was

their contention that plaintiff in collusion with measurement officer has

2 SA 319-2013, CA 6434-2013

shown the encroachment. As per original Defendant No.1, land Gut

No.143 is of Ranubai Devasthan and not of the plaintiff. As per

original defendant No.3. Defendants contention is that the notice of

measurement was not served upon them and measurement has

done behind their back and prior to the filing of the suit. It was the

contention of the appellants/defendants 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 himself. Defendants

have examined defendant No.3 and Abedmiya Momin D.W.2 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 that he is in possession of 9 R land in Gut

No.143 situated at village Devdi Tq. Majalgaon and the obstruction

at the hands of defendants in enjoyment of the land. The suit came

to be dismissed on 13-02-2006.

3. Plaintiff then filed Regular Civil Appeal No.20 of 2006, it was

allowed with costs by learned District Judge-1, Majalgaon District

Beed on 22-01-2013. Hence, original defendants No.2 and 3 filed

present second appeal.

3 SA 319-2013, CA 6434-2013

4. Heard leaned Advocate Mr. V. D. Salunke for appellants,

learned Advocate Mr. V. P. Savant for respondent No.1. Learned

Advocate Mr. A. S. Doke is absent.

5. Learned Advocate Mr. V. D. Salunke for the appellants

submitted that learned Trial Court has correctly dismissed the suit of

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. V. P. Savant 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 16-07-1997, he filed the suit in the year 1998.

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

4 SA 319-2013, CA 6434-2013

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

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

5 SA 319-2013, CA 6434-2013

again."

Though the suit was filed in the year 1998, it was decided in the

year 2006. 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

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 office of TILR or DILR, as the case may be, so that measurement of suit property is carried out in

6 SA 319-2013, CA 6434-2013

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.3 Abedmiya Momin 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 perpetual injunction 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. Learned Lower Court had concluded that

the plaintiff has failed to prove that the encroached area is part and

parcel of suit land. The First Appellate Court on the contrary relies

upon admission of defendant No.3 for the title claimed by plaintiff.

Therefore, bringing that admitted map was necessary. As aforesaid,

even the First Appellate Court failed to exercise its powers, however,

7 SA 319-2013, CA 6434-2013

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.

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.201 of 1998 dated 13-02-2006 and Judgment and decree passed by learned District Judge-1, Majalgaon Dist.Beed in RCA No.20 of 2006 dated 22-01-2013, are hereby set aside.

3) The Regular Civil Suit No.201 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.

                                                8                        SA 319-2013, CA 6434-2013



                 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 1998 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 22-10-2021.

         8)      No order as to costs.


         9)      The second Appeal stands disposed of.                        Pending civil
         application stands disposed of.


                                              (SMT. VIBHA KANKANWADI)
                                                        JUDGE
vjg/-.