Bombay High Court
Gram Vikas Sanstha, Murud And ... vs Vasant Ramchandra Kshirsagar on 5 May, 2022
Bench: Mangesh S. Patil
SA-638-2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.638 OF 2014
WITH
CA/10610/2014 IN SA/638/2014
WITH
CA/5191/2020 IN SA/638/2014
1. Gram Vikas Sanstha, Murud, ]
Through its president, ]
Shri Shivajirao S/o Tukaram Nade, ]
Age : 87 Years, Occ. Agri. ]
R/o. Murud, Tq. & Dist. Latur. ]
2. Rural Education Society, Murud, ]
Through its President, ]
Shri Kishanrao S/o Tukaram Nade, ]
Age : 78 Years, Occu : Agri., ]
R/o Murud, Tq. & Dist. Latur. ] ... Appellants
(Orig.Appellants/Plaintiffs)
Versus
Vasant S/o Ramchandra Kshirsagar ]
Age : 57 Years, Occ. Business, ]
R/o. Murud, Tq. Dist. Latur. ] ... Respondent
(Orig. Respondent/defendant)
...
Mr. Dhananjay P. Deshpande, Advocate for Appellants.
Mr. A. P. Bhandari h/f. Mr. Manoj Shinde, Advocate for sole Respondent.
...
CORAM : MANGESH S. PATIL, J.
RESERVED ON : 04 APRIL 2022
PRONOUNCED ON : 05 MAY 2022
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SA-638-2014.odt
ORDER :
. This is plaintiffs' second appeal.
2. Heard the learned advocates of both the sides.
3. The appellants are two public trusts. Appellant no.1 purchased 4
Hector, 86 Are equivalent to 12 Acre 1 Guntha out of land gut no. 596 (old
survey no. 100) of Murud, District Latur by a registered sale deed dated
19-09-1963, which has been described in the plaint and referred to therein as
the 'suit property'.
4. By a gift in the year 1986, the appellant no.1 transferred a portion
admeasuring 2 Hector 43 Are of the western side to the appellant no.2. The
appellant no.2 constructed a school building and has been running a school.
The appellants filed the suit claiming perpetual injunction simplicitor
restraining the respondent from obstructing their possession over the suit
property.
5. The respondent in his written statement admitted appellant no.1
to have purchased and being the owner of the suit property. He also admitted
possession of the appellants over the suit property, but according to him,
disputed portion, which lies to the west of a road dividing the suit property in
two parts is a part, and parcel of land gut No.594, which he purchased from
his predecessor and claimed to be its owner in possession.
SA-638-2014.odt
6. The trial court dismissed the suit and even the appellants' appeal
was dismissed by the district court by the judgment and order under challenge
in the second appeal.
7. It transpires that civil application no.10606 of 2014 in this appeal
was filed by the appellants for taking fresh measurements by Taluka Inspector
of Land Records. The respondent opposed that application. By the order
dated 28-07-2016 this court for the reasons recorded therein allowed that
application. Paragraph Nos. 5 and 6 of that order reads as under :-
"5. If the Judgments delivered by the Courts below and the
evidence of Cadestral Surveyor are considered, it appears that the
dispute is not decided. Only because through the evidence of
Cadestral Surveyor, plaintiffs could not prove that the disputed
portion was purchased by it, the Suit is dismissed. This Court holds
that for giving decision of the real dispute, it is necessary to allow
the plaintiffs to get the property purchased by it measured through
the Surveyor and this time it can be done in presence of both sides.
6. In the result, following order is passed.
The application is allowed. The T.I.L.R. of the concerned
Tahsil is hereby appointed as Commissioner. He is to measure the
property purchased under sale deed of the year 1963 from G.No.
596 [old S.No.100]. The measurement be made on the basis of the
relevant record and the sale deed by ascertaining the fix points for
measurement and it is to be done in presence of both sides after
giving notices. If any party does not turn up even after sending of
notice, the measurement can be done in absence of the parties. The
charges are to be deposited by the plaintiffs with the T.I.L.R. office
within 15 days from today. The measurement is to be done by the
T.I.L.R. within 45 days thereafter."
SA-638-2014.odt
8. Pursuant to such order a commission was executed and a fresh
survey was undertaken and the Deputy Superintendent of Land Records, Latur
has submitted a report, which was received by this court on 06-02-2016,
which is marked 'X' only for the purpose of identification. This Surveyor has
demarcated the boundaries of land gut no. 596 and pointed out that a portion
admeasuring 6 Are situated to the west of the road proceeding from Murud to
Gumphawadi, is from land gut no. 596, but is in possession of the respondent.
Both the sides have filed their objections to the measurement carried out by
the surveyor. Those are marked 'Y' and 'Z' respectively for the purpose of
identification.
9. Though the appellants accepted the report to the extent it points
out that a portion admeasuring 6 Are is a part and parcel of gut no. 596, they
dispute the fact that the respondent was in its possession. As against this, the
respondent disputed the report of the surveyor to the extent it demonstrates
6 Are portion to be part and parcel of gut no.596, but accepted it to the extent
it shows him to be in its possession.
10. Since the appellants claimed only perpetual injunction and
though the respondent admits their ownership, the issue as to whether the 6
Are portion shown by the surveyor is a part and parcel of gut no. 596 and as to
who, the appellants or the respondent, is in its possession is a crux of the
matter.
SA-638-2014.odt
11. Since the suit property was sought to be remeasured and this
court had for the reasons recorded in the order had passed the order directing
a re-measurement, in my considered view, the order had the effect of
permitting additional evidence to be produced as contemplated under Order
XLI Rule 27 of the Code of Civil Procedure.
12. Since both the sides are disputing the result and the measurement
carried out at the second appellate stage, in my considered view, it would be
appropriate if such additional evidence in the form of re-measurement is
tested on the touchstone of all the aspects, for the purpose of which, the
procedure contemplated under Order XLI Rule 25 of the Code of Civil
Procedure becomes inevitable. Instead of this court resorting to any finding
of fact at the second appellate stage, it would be appropriate that the issues
are framed and referred to the trial court permitting the parties to lead
additional evidence if they so choose including examination of the surveyor,
who has carried out the measurement during pendency of the second appeal
as mentioned herein above, which would enable both the sides to bring on
record the evidence and would enable the courts below to address the issues.
Hence the issues :-
"(I) Whether the 6 Are portion shown in the measurement map marked
'X' is a part and parcel of land gut no.596 ?
SA-638-2014.odt
(II) Who is in actual possession of this 6 Are portion, plaintiffs or
defendant ?"
13. The parties shall appear before the trial court on 06-06-2022 and
there shall be no need for it to issue any notice/summons to them.
14. The trial court shall permit both the sides to lead additional
evidence, oral as well as documentary, including examination of the court
commissioner / surveyor, who has measured the land and prepared the map
('X').
15. The trial court shall thereafter answer the above issues and
forward his findings to the appellate court within six months from the date of
receipt of the record and proceeding.
16. The lower appellate court shall then hear the parties and answer
the points formulated in tune with these issues framed herein above and
certify the findings recorded by the trial court in accordance with law within
four months of its receipt from the trial court.
17. The office shall list the second appeal for admission for such
exercise is over and the findings of lower appellate court are received.
( MANGESH S. PATIL, J.)
Tandale/-
