Bombay High Court
Suresh Eknathrao Kale vs Subhash Bhaskarao Deshmukh And ... on 12 September, 2022
Bench: Avinash G. Gharote
1209 SA 23 of 2022.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.23/2022
Suresh Eknathrao Kale
...Versus...
Subhash Bhaskarrao Deshmukh and another
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Shri P.W. Mirza, Advocate for appellant
Shri V.A. Kothale, Advocate for respondents
CORAM : AVINASH G. GHAROTE, J.
DATE : 12/09/2022
1. Heard Shri Mirza, learned counsel for the
appellant and Shri Kothale, learned counsel for the
respondents. The second appeal challenges the judgment of
the learned Appellate Court dated 08/12/2021, whereby the
learned Appellate Court has partly allowed the appeal and
remanded the matter for conducting joint measurement. After
conducting the joint measurement of plot nos.6, 7 and 10 in
the layout on Survey no.36/1-C, as a claim is made that the
defendant, who is the owner of plot no.10 in the layout on
Survey no.36/1-C, has encroached upon plot nos.6 and 7,
which are to the western side of his plot in the same layout,
which are owned by the plaintiffs. The remand cannot be
1209 SA 23 of 2022.odt
questioned for the reason that for determining encroachment,
a joint measurement is always necessary. However, what is to
be seen from the impugned judgment dated 08/12/2021 is
that the remand is ordered only for joint measurement of plot
nos.6, 7 and 10 after taking into consideration the permanent
boundary marks. The evidence on record of PW 3 - Sunaina
Wasantrao Telgote the measurer, indicates that though the
office has a measurement sheet of Survey no.36, since the
same stands divided into multiple units, of which Survey
no.36/1-C is a portion, unless the sub-divisions are determined
and in relation to that the location of Survey no.36/1-C is
established and in turn the layout is finalized locating plot
nos.6, 7 and 10, the question of any encroachment cannot be
resolved. The judgment of the learned Appellate Court does
not indicate such a course of action.
2. Shri Kothale, learned counsel for the respondents
fairly concedes that since the area of Survey no.36/1-C itself
has not been determined, it would be necessary to first
determine that area and the layout thereupon, so that the
location of plot nos.6, 7 and 10 would then be fixed and the
area measured. He submits that such a course of action would
result in finally deciding the issue fully and effectively.
3. Shri Mirza, learned counsel for the appellant has
no objection to such a course being adopted, considering
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which, list the matter at the end of the board today.
(AVINASH G. GHAROTE, J.)
Later on :
1. The learned counsels for the parties have filed a
joint pursis, on instructions from their respective clients,
stating that the measurement of Survey no.36/1-C is necessary
for identification of plot nos.6,7 and 10 and therefore both of
them consent that the impugned judgment of the First
Appellate Court dated 08/12/2021 be modified to that extent.
2. The pursis is taken on record and marked as "X"
for the purpose of identification.
3. Since I am not interfering with the impugned
judgment in any substantial nature but I am only clarifying the
same, in view of the joint pursis, in my considered opinion, the
substantial question of law is not required to be framed. In
view of joint pursis dated 12/09/2022 the judgment of the
learned First Appellate Court shall stand modified with an
additional direction, that the land of field Survey no.36/1-C
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shall also be measured so as to fix the comparative locations of
plot nos.6, 7 and 10 in the layout laid therein in reference to
fixed identification mark as per the records of the city survey.
The expenses of such measurement shall be borne by the
respondents/plaintiffs. The second appeal is accordingly
disposed of. No order as to costs.
(AVINASH G. GHAROTE, J.)
Wadkar
Digitally signed bySHAILENDRA
SUKHADEORAO WADKAR
Signing Date:13.09.2022 17:42
