Chandrashekar Manmathappa ... vs Abdul Mujib Abdul Rauf Jagirdar ...
2022 Latest Caselaw 928 Bom

                                           1                     SA / 388 / 2021



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                       SECOND APPEAL NO. 388 OF 2021
                                    AND
              CIVIL APPLICATION NO. 10107 OF 2021 IN SA/388/2021

Chandrashekhar S/o Manmathappa Chavanda,
Age : 60 years, Occu. Agriculturist,
R/o Ambajogai Road, Ahmedpur,
Tq. Ahmedpur, Dist. Latur                                           .. Appellant
                                                                 (Orig. Defendant)
          VERSUS

1] Abdul Mujib S/o Abdul Rauf Jagirdar,
   Age : 64 years, Occu. Pensioner and Agril.,
   R/o Ahmedpur, Tq. Ahmedpur,
   District : Latur

2] Abdul Latif S/o Abdul Rauf Jagirdar,
   Age : 53 years, Occu. Agriculturist,
   R/o Kalegaon, Tal. Ahmedpur                                       .. Respondents
                                                                    (Orig. Plaintiffs)

                                             ...
                Mr. B.R. Sontakke Patil, Advocate for appellant-applicant
                         Mr. J.R. Patil, Advocate for respondents
                                             ...

                                      CORAM : MANGESH S. PATIL, J.

DATE : 27 JANUARY 2022

ORAL ORDER :

I have heard both the sides on the point of admission.

2. The respondents are the original plaintiffs who filed the suit

for declaration of ownership and possession alleging encroachment

over their property to the extent of 4 Are by the present appellant. The

suit was dismissed. They preferred appeal before the District Court

which reversed the judgment and order of the trial court and decreed the

suit by the judgment and order under challenge in the second appeal.

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3. After hearing both the sides, following substantial question

of law arises for determination by this Court :

When the plaintiffs described the properties owned by

the plaintiffs no.1 and 2 separately but from the same

survey no.1/2 and the measurement carried out by the

surveyor Mr. Rajesh Korde (PW 2) did not specifically

demonstrate whether the alleged encroachment of 4

Are found by him was on the property owned by the

plaintiff no. 1 or the plaintiff no.2 or may be the

remaining 7 Are portion purchased by the wife of the

plaintiff no. 1, the appellate court was justified in

reversing the judgment and order of the trial court ?

4. I have heard the learned Advocates of both the sides on the

afore-mentioned point.

5. It is necessary to appreciate the averments in the plaint.

In the plaint, the respondents have specifically mentioned that the

respondent no.1 was the owner of 6 Are portion from land survey no. 1

Hissa no. 2 whereas respondent no. 2 was owner in possession of land

admeasuring 5 Are from the same land, namely, survey no. 1 Hissa

no. 2, albeit, they have given separate boundaries for both these pieces

of lands. It was specifically averred that in-fact, the respondent no. 1

had purchased a total portion admeasuring 13 Are from the erstwhile

owner M/s. Bharat Manohar Reddy and Pravin Manohar Reddy. It was

3 SA / 388 / 2021

also averred that later-on he sold 7 Are portion from this 14 Are land to

his wife by a registered sale deed.

6. If such was the state-of-affairs, since it was a matter of

encroachment, it was expected to have a concrete evidence so as to

enable the court decreeing the suit to distinctly demarcate such

encroached portion. Admittedly, in a suit bearing Regular Civil Suit

no.31 of 2001 filed by the present appellant against the respondents, a

court commissioner was appointed to undertake measurement on

17-05-2006, admittedly, the said suit was sought to be withdrawn by the

appellant unconditionally but since the request was rejected, he has

challenged that order by filing a writ petition which is pending before this

court.

7. Admittedly, the person who had carried out that

measurement was none other than witness Rajesh Korde (PW 2) who

was examined by the respondents in the present suit. Obviously, an

attempt was made to get the measurement carried out by him

established on the record in view of the provisions of section 83 of the

Indian Evidence Act. Ex facie, he did not seem to have taken pains to

distinctly demarcate the portion owned by the respondent no. 1 and one

owned by the respondent no.2. Similarly, he has also not considered

and distinctly pointed out the 7 Are portion which was sold by the

respondent no. 1 to his wife. In the absence of such internal division

demarcating the portions of land owned by the respondent no. 1,

respondent no. 2 and the wife of the respondent no. 1, simply relying

4 SA / 388 / 2021

upon this measurement and the map Exhibit - 74 it is indeed doubtful as

to if whatever encroachment that was noticed by the surveyor - Rajesh

Korde (PW 2) was entirely on the portion exclusively owned by the

respondent no. 1. Pertinently, during his cross-examination in

paragraph no. 5 he was unable to tell as to how much encroachment

noticed by him was on the property of the respondent no.1 and how

much was it on the property of the respondent no. 2.

8. If such is the state-of-affairs, it was indeed the material

circumstance rather infirmity in the measurement carried out by him.

Precisely for this very reason the trial court had refused to rely upon

such measurement and had dismissed the suit. Ignoring such

reasoning, the appellate court even without appreciating the afore-

mentioned facts and circumstances, has readily accepted this

measurement, even without precisely meeting the reasoning given by

the trial court.

9. Needless to state that if the dispute is about some

encroachment, there has to be a concrete evidence available for the trial

court so as to pass effective decree for possession. Suffice for the

purpose to refer to the decision in Sulemankhan Mumtajkhan and others

Vs. Smt. Bhagirathibai wd/o. Digamber Asalmol and another; 2014 (5)

ALL MR 552 and the judgments referred to therein. The appellate court

has miserably failed to appreciate the matter in controversy and has

grossly erred in reversing the judgment and order passed by the trial

court.

5 SA / 388 / 2021

10. In view of such peculiar state-of-affairs, in my considered

view, the judgment and order of the appellate court is liable to be

quashed and set aside as also that of the judgment of the trial court and

suit needs to be remanded with a direction to appoint a court

commissioner and to undertake the exercise of measurement by giving

notice to all the interested parties and even the owners of the adjoining

properties and with reference to permanent boundary marks which

alone can enable the courts to impart justice.

11. I, therefore, answer the point in the negative, allow the

Second Appeal, quash and set aside the judgments and orders of both

the courts below and remand the suit to the trial court for decision

afresh.

12. The trial court shall now pass order appointing the Taluka

Inspector of Land Records / District Inspector of Land Records as a

court commissioner for carrying out the measurement in the light of the

above observations and then examine the surveyor as a witness.

13. Needless to state that the parties shall be at liberty to either

admit the report of the court commissioner or undertake his cross-

examination. Based on the outcome the trial court shall decide the suit

afresh as early as possible.

6 SA / 388 / 2021

14. The parties shall appear before the trial court on

21-02-2022 and there shall be no need for it to inform them

independently.

15. Pending Civil Applications are disposed of.

[ MANGESH S. PATIL ] JUDGE arp/