Bombay High Court
Amolkumar Navinchand Patni And Ors vs Shankar Dashrath Navpute on 7 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:25908
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH
AT AURANGABAD
906 APPEAL FROM ORDER NO. 03 OF 2023
1. Amolkumar s/o Navinchand Patni
Age : 30 years, Occupation : Business,
R/o . Thakare Nagar, Behind Deogiri Bank,
Aurangabad - 431007
2. Komalkumar s/o Navinchand Patni,
Age : 31 years, Occupation : Business,
R/o . Thakare Nagar, Behind Deogiri Bank,
Aurangabad - 431007.
3. Shobhabai w/o Navinchand Patni,
Age : 62 years, Occupation : Household,
R/o . Thakare Nagar, Behind Deogiri Bank,
Aurangabad - 431007
...APPELLANTS
(Original Defendants)
VERSUS
Shankar s/o Dashrath Navpute,
Age : 53 years, Occupation : Agriculture,
R/o. Chikalthana, Taluka &
District Aurangabad - 431007.
...RESPONDENT
( Original Plaintiff )
...
Advocate for Appellants : Mr. Swapnil S. Patil
Advocate for Respondent : Mr. Swapnil B. Patel
...
CORAM : S. G. MEHARE, J.
DATE : 07.12.2023
ORAL JUDGMENT :-
1. Heard the respective learned counsels.
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2. The appellants are the original defendants, and the
respondent was the original plaintiff. The plaintiff had filed a
suit for removal of encroachment, possession and injunction.
He relied on the cadastral surveyor measurement report but
did not examine the cadastral surveyor. The learned Court of
the first instance held that the plaintiff failed to show that the
defendants had encroached upon the disputed portion of the
land. He also observed that the existence of the so-called river
was also not reflected in the measurement report. The learned
Court of the first instance had dismissed the appeal.
3. The plaintiff had preferred the appeal before the first
appellate Court. The First Appellate Court held that there was
a disagreement on the map placed on record. The Court of the
first instance held in beginning the cadastral surveyor
measurement map without examining the cadastral surveyor
grant on the pronouncement. The Court held that the learned
Court of first instance did not consider the controversy
between the parties in the correct perspective. He also held
that the appointment of the Cadastral surveyor for joint
measurement is essential. He remitted the appeal to the trial
Court. Against the judgment and decree of the first appellate
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Court passed in Regular Civil Appeal No. 100/2021 dated
19.11.2022, the defendants are before this Court.
4. This Court (Coram : Gauri Godse, J.) framed the
following substantial questions of law :
"(1) Whether the first appellate Court is right in
remanding the matter for fresh trial by setting
aside the decree of the trial court for re-trial for
the purpose of appointment of court commissioner
for survey and measurement of the suit land,
without framing any point of consideration with
respect to the title of the suit property?
(2) Whether the order of remand passed by the
first appellate Court, thereby setting aside the
dismissal of the suit without considering the point
of the title of the plaintiff, though there was a
dispute with respect to the title and the same was
decided by the trial court?"
5. The learned counsel for the appellants submits that the
First Appellate Court did not frame the points for
determination. Therefore, the impugned judgment and decree
is erroneous. Under Order 41 Rule 31 of the Code of Civil
Procedure, the First Appellate Court has to frame the points for
determination.
..4.. 906-ao-3-23,J.
6. Per contra, the learned counsel for the respondent
submits that the First Appellate Court has specifically framed
the point that, "Did the plaintiff prove the defendant had made
encroachment on the suit land? This was the material issue
that covered the issue of the plaintiff's title. He also argued that
the defendants never denied the title of the plaintiff of gut no.
261. Therefore, no specific point was required to be
determined. The suit of the plaintiff itself was on the basis of
the title, and the issue of the title was not before the trial
Court. The plaintiff has claimed that the suit land was his
ancestral property. The sale deed of the suit land was before
the Court.
7. The plaintiff filed a sale deed (Exhibit 37). It was
standing in the name of his father. The learned Court of the
first instance referred to the recitals of the sale deed and
recorded findings that the recitals of the sale deed do not
disclose that the land purchased by the plaintiff's father does
not include 40 R of the land on which the encroachment was
made. However, the First Appellate Court categorically
considered this issue and it was reproduced by the learned trial
Court of first instance. However, he did not comprehensively
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record the finding whether the plaintiff prima facie had proved
that he had a title over the land allegedly encroached upon by
the defendants. The Court of first instance recorded the finding
that it is a settled preposition of law that in any case in which
there is a dispute about encroachment or dimension of the
side, the essential thing is to get an agreed map. If the parties
cannot agree, a Court Commissioner must be appointed to
prepare the same and subsequent reference in the pleading or
judgment placed with a map should be referred to this map,
which must be attached to the decree and signed by the judge.
The learned counsel for the appellants relied on the case of
Omprakash, Gulabchand Bajoria Vs. Ramesh Ramnivas Soni,
Sheikh Malang, Sheikh Husain Laws (Bom)-2003-8-43 of this
Court dated 20.08.2003. They also relied upon another case
under the pronouncement of this Court passed in the case of
Vijay Shende Vs. The State of Maharashtra, 2009(5) Mh.L.J.
279.
8. Perusal of the judgment of the trial Court shows that the
issues on the title were not framed, but the learned Court of
first instance recorded the finding without framing issues, i. e.,
whether the plaintiff is the owner of land encroached upon by
the defendants. The case revolves around the encroachment.
..6.. 906-ao-3-23,J.
The law is well settled that in such cases, the best solution is to
appoint a Cadastral surveyor as a court commissioner under
Order 26 Rule 9 of the Code of Civil Procedure for the joint
measurement of the lands of the persons involved in the suit.
9. Since there was no specific issue framed in the suit about
the title, the First Appellate Court has no reason to deal with
the same.
10. The law is settled that nobody should suffer for the
wrongs of others. The measurement map is always put in
question by the opposite side. Even after having many
pronouncements of this Court, the litigants do not apply to the
Cadastral surveyor for joint measurement, nor the office of the
Superintendent of Land Records department is taking note that
in case of an application for determining the encroachment has
been filed, he should have taken the joint measurement of the
person is concerned. It has created a mess and given rise to
many litigations and failures of litigation due to the faulty
procedure adopted by the said department. No person should
suffer only for the mistakes committed by the cadastral
surveyor. For an agriculturist, the land is the only source of
income, and the land is everything for him. No one should
..7.. 906-ao-3-23,J.
violate the rights of others by committing the illegalities for
setting right such illegalities. Even in this case, the learned
Court of first instance, without the evidence of the Cadastral
surveyor's map, read the map and recorded the finding.
Therefore, the learned Court of first instance appears to have
correctly recorded the finding on this point. The encroachment
is to be identified by appointing the Cadastral surveyor.
Therefore, by order of remand, the defendants would definitely
not suffer any loss. The truth should come out to find out who
is at fault; the defendants may also benefit. If the joint
measurement of the suit lands is done.
11. The Court did not find any infirmities in the impugned
judgment and decree. Hence, the substantial questions of law
have been answered that the First Appellate Court has rightly
remanded the matter for a fresh trial, and the remand of the
First Appellate Court is not bad without considering the point
of the title of the plaintiff as it was not the issue before the trial
Court.
12. In view of the above discussion, the following order is
passed :
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ORDER
(i) The appeal stands dismissed.
(ii) No order as to costs.
(iii) Both parties are to appear before the First Appellate
Court at first instance on 15.01.2024.
(iv) Record and Proceedings be returned to the learned Court
of first instance.
(v) It is clarified that all the points are kept open.
(S. G. MEHARE, J.)
...
shp/-
