Bombay High Court
Sukhdeo S/O Rajaramji Chichkhede vs Kavita W/O Anandrao Landge And ... on 26 September, 2022
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 191 OF 2018
Sukhdeo S/o Rajaramji Chichkhede
Aged about 58 years,
Occupation - Govt. Servant,
R/o. Jaripatka, Nagpur. APPELLANT
Versus
1. Kavita W/o Anandrao Landge,
Aged about 32 years,
Occupation - Corporator,
R/o. Mahatma Fule Nagar,
Zopadpatti, Near Railway Line,
Prabhag No.1, Jaripatka, Nagpur-14.
2. Anandrao S/o Shamji Landge,
Aged about 32 years,
Occupation - Service,
R/o. Mahatma Fule Nagar,
Zopadpatti, Near Railway Line,
Prabhag No.1, Jaripatka, Nagpur-14.
3. Nagpur Municipal Corporation,
Through its Commissioner,
Civil Lines, Nagpur.
4. The Nagpur Improvement Trust,
Through its Chairman,
Civil Lines, Nagpur.
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5. Pradnyashri Co-operative Housing
Society through its President
Satyanarayan Sahu, aged about Major,
Occupation - Not known,
R/o. Dayaklu Society, Jaripatka,
Nagpur-14. RESPONDENTS
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Mr. Sailesh S. Sitani, Advocate for the Appellant.
Mr. Rohan R. Chhabra, Advocate for the Respondent No. 3.
Mr. Pranav V. Deshmukh, Advocate a/w Mr. Kuldeep P. Mahalle
Advocate for the Respondent No.4.
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CORAM : AVINASH G. GHAROTE, J.
DATED : 26th SEPTEMBER, 2022.
ORAL JUDGMENT :-
Heard Mr. Sitani, learned counsel for the appellant,
Mr. Chhabra, learned counsel for the respondent No.3 and
Mr. Deshmukh, learned counsel for the respondent No.4. None
appears for the respondent Nos. 1 and 2, though served. None
appears for the respondent No. 5, though served by paper
publication.
2. ADMIT in view of the substantial question of law as
indicated in the order dated 30.11.2021. The Second Appeal is
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taken up for final disposal by consent of learned counsels
appearing for the respective parties.
3. It is an admitted position on record, that the
appellant/plaintiff is the owner of Plot No. 91 in the layout laid
on Khasara No. 21 by Pragatshil Co-operative Housing Society,
which layout has been regularised by the respondent
No.4/N.I.T. It is also an admitted position, that upon
regularization, the charges for the same has been paid by the
plaintiff by a receipt dated 26.07.2002 in the sum of
Rs. 20,773/-. It is thus apparent, that the ownership of the
regularized Plot No. 91, which subsequently has been
renumbered as Plot No. 78, is not disputed by the respondent
No.4/N.I.T., who in fact is the Authority, who has regularized
the layout as well as the plot in question upon the receipt of the
regularization charges. The suit was filed on the ground, that
the respondent No.4/N.I.T., while laying down a road has
encroached upon the land of Plot No. 78 owned by the plaintiff.
The learned Trial Court in the judgment dated 23.12.2005, has
accepted the ownership of the plaintiff in respect of the Plot No.
91 (New No. 78) and its regularization, however only on the
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ground that the boundaries could not be determined after
regularization, has dismissed the suit, which has been confirmed
by the learned Appellate Court on the same ground by its
judgment dated 31.10.2017. Mr. Sitani, learned counsel for the
appellant, has filed Civil Application (CAS) No. 1007/2022
under Order XXVI Rule 9 of the Code of Civil Procedure, for
appointment of Commissioner to jointly measure the land of
Plot No. 78 as well as the road in order to determine the
encroachment.
4. The determination of an encroachment is always
necessary based upon a joint measurement of the property,
which could either be done through the SLR or Commissioner
appointed by the Court. Though, Mr. Deshmukh, learned
counsel for the respondent No.4/N.I.T. opposes, considering the
fact that the respondent No.4/N.I.T., itself is the Authority who
has regularized the Plot No. 78 and has also laid down the road,
the determination of the encroachment by appointment of the
Commissioner would be necessary. That exercise, however
cannot be done in the present Second Appeal. Mr. Sitani,
learned counsel for the appellant, has also relied upon Shalini
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Santosh Kothawale and Ors. Vs. Harishchandra Savlo
Kothawale and Ors., Second Appeal No. 31/2005, decided on
20.10.2021, MANU/MH/3400/2021 para 16, in which it has
been held, that dehors the filing of an application, the Court
can, on its own, exercise its power so that the dispute is put to
rest once and for all by appointment of a Commissioner for a
local investigation. Similar is the view taken by the learned
Single Judge of this Court in Dattu son of Maruti Parkhi Vs. Shri
Ramesh son of Ganpati Milmile, Second Appeal No. 352/2016,
decided on 06.02.2018.
5. In the instant matter also there is a serious dispute
regarding the identity of the property, the ownership of which
does not appear to be disputed by the respondent No.4/N.I.T.,
who is the regularizing Authority in respect of the said property
itself, considering which, it is necessary, that the identity of the
property and nature of encroachment, ought to be established,
for which, it does not appear any opportunity has been rendered
by the Courts below, considering which, both the impugned
judgments are hereby quashed and set aside. The matter is
remanded back to the learned Trial Court to decide according to
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law after appointment of the Commissioner to determine the
nature and extant of the holding of the plaintiff and the
encroachment claimed by him upon the property held by him.
6. Needles to say, that the cost of measurement shall
be borne by the appellant/plaintiff.
7. The parties shall appear before the learned Trial
Court on 10.10.2022 and place a copy of this judgment to
apprise it of the same. The respondents who have been served
by paper publication in this Second Appeal shall be served
afresh.
8. The Second Appeal is allowed in the above terms.
9. Pending application/s, if any, shall stand disposed of
accordingly.
( AVINASH G. GHAROTE, J.)
S.D.Bhimte
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:27.09.2022 14:43
