Shir. Ramchandra Khandu Marle ... vs Shir. Ramchandra Babu Hubale ...
2022 Latest Caselaw 13196 Bom

                                                                  12 sa 107.17 with cas 245.doc


                      Dusane

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                       SECOND APPEAL NO.107 OF 2017
                                                   WITH
                                     CIVIL APPLICATION NO.245 OF 2017



                      Ramchandra Khandu Marle                 ...Appellants
                      (deceased) thru LRs
                      Balasaheb Ramchandra Marle
                      & Ors.

                              V/s.
BHALCHANDRA
GOPAL DUSANE
                      Ramchandra Babu Hubale                  ...Respondents
Digitally signed by   (deceased) thru Dilip Ramchandra
BHALCHANDRA
GOPAL DUSANE
Date: 2022.12.21
                      Hubale & Ors.
11:26:17 +0530



                      Mr. Anilkumar Patil for Appellants/Applicants
                      Mr. Ranjeet H. Patil for Respondents.


                                              CORAM: MADHAV J. JAMDAR, J.

DATE: 19th DECEMBER, 2022

P.C.:

1. Heard Mr. Anil Patil, learned Counsel appearing for the

Appellants and Mr. Ranjeet Patil, learned Counsel appearing for

the Respondents.

2. Mr. Anil Patil submitted that the substantial questions of

law involved in this appeal are the grounds (J) and (K) raised in

the appeal memo. The said grounds read as under :

12 sa 107.17 with cas 245.doc

j) Whether lower Courts erred in holding that the report submitted by Court Commissioner is true and conclusive proof that the Appellants have encroached on the land which is part and parcel of the land gat no. 558 especially when the Court Commissioner was not examined by the Respondents to prove the correctness and genuineness of the report submitted and maps prepared by the Court Commissioner in respect of the suit property ?

k) The learned lower Courts erred in not appreciating the case laws filed by the Appellants and wrongly relied upon the case laws filed by the Respondents herein ?

3. To appreciate substantial questions of law, certain factual

aspects are required to be noted. The Respondent-Plaintiff filed

Regular Civil Suit No. 277 of 1979 for recovery of possession of

encroached portion of the suit property and for perpetual

injunction.

4. The learned Trial Court decreed the suit and the learned

First Appellate Court set aside the decree and remanded the suit

to the Trial Court with a direction to allow the parties to adduce

additional evidence and to decide the matter again. After

remand, the learned Trial Court decreed the suit by the

impugned judgment and decree dated 2nd August 2008 and the

appeal filed challenging the same was dismissed by the learned

12 sa 107.17 with cas 245.doc

First Appellate Court by judgment and decree dated 24th August

2016.

5. Both the Courts below have relied on the report of the

Court Commissioner, which is at Exhibit 39. Both the Courts

have observed that the objection has not been taken by the

Appellant to the report of the Court Commissioner and the

report of the Court Commissioner shows that there is an

encroachment. As objections are not filed to the Court

Commissioner report, there is no substance in the first

substantial question of law raised by the learned Counsel

appearing for the Appellant.

6. Mr. Anil Patil relied on the judgment of this Court, in the

matter of Ramchandra Bhikaji Jagtap V. Dudharam

Langruji Padvekar1. In the said judgment, it has been held

that there is no presumption of accuracy in respect of the map

or plan which is made for a particular cause and it goes without

saying that a map prepared for the purpose of a particular suit

must, therefore, be duly proved and it is not admissible in

evidence in absence of proof of its accuracy. The onus of proving

that such a map is accurate lies on the party who produces it.

Therefore appointment of Commissioner under Order XXVI, Rule

9 of the Code of Civil Procedure was directed. The said judgment

1 2004(1) Mh. L.J. 278

12 sa 107.17 with cas 245.doc

has no application to the facts of this case, as in the present

case map is not produced but the Court Commissioner was

appointed and he submitted the report showing the

encroachment and objection has not been taken to the said

report by the Appellants. In view of this, there is no substance

in the second substantial question of law raised by the learned

Counsel appearing for the Appellant.

7. Second Appeal is dismissed with no order as to costs.

8. In view of dismissal of the Second Appeal, nothing survives

in the Civil Application and same is accordingly disposed of.

9. Record and Proceedings be sent to the learned Trial Court.

(MADHAV J. JAMDAR, J.)