Bombay High Court
Sushilabai Ganpat Nikam Decd And Ors vs Tukaram Maurti Kadam And Ors on 29 November, 2023
Author: N.R. Borkar
Bench: N.R. Borkar
2023:BHC-AS:35298
WP-657-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 657 OF 2021
Sushilabai Ganpat Nikam (deceased) and ors. ...Petitioners
Versus
Tukaram Maruti Kadam and ors. ...Respondents
.........
Mr. Sumit Chavan i/b Sushant Prabhune for the Petitioner.
Mr. Ketan Joshi a/w Siddharth Karpe for Respondent Nos. 1 & 2.
.........
CORAM : N.R. BORKAR, J.
DATED : 29 NOVEMBER 2023
P.C. :-
. The petitioners herein had filed the suit for declaration and
injunction against the respondents.
2. The dispute between the parties is in relation to the road, which is
there in between the lands owned by the petitioners and the land owned
by the respondent Nos. 1 & 2. According to the petitioners, disputed road
is part and parcel of land owned by them bearing Gat No. 503, whereas
according to the respondent Nos. 1 and 2, the disputed road is part and
parcel of land owned by them bearing Gat No. 496.
3. The claim of the petitioners was based on the report of Cadestral
Surveyor. The report of Cadestral Surveyor was discarded and the suit was
WP-657-2021.odt
dismissed.
4. In appeal at the instance of the petitioners, the judgment and decree
passed by the trial Court was set aside and the matter was remanded back
to the trial Court with a direction that the trial Court shall decide the
matter afresh after appointing new Cadestral Surveyor.
5. Accordingly, a new Cadestral Surveyor was appointed, who
submitted his report, which was supporting the claim of the petitioners.
6. The trial Court again discarded the report of the Cadestral Surveyor
and dismissed the suit.
7. The petitioners in an appeal filed by them against the judgment and
decree of the trial Court filed an application for appointment of Cadestral
Surveyor. The Appellate Court rejected the said application by the order
impugned.
8. I have heard the learned counsel for the petitioners and the learned
counsel for the contesting respondent Nos. 1 and 2.
9. The learned counsel for the petitioners has drawn my attention to
the findings recorded by the trial Court. It is submitted that on both the
occasions the trial Court discarded the reports of the Cadestral Surveyors
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on technical grounds and thus application was made before the appellate
Court for appointment of Cadestral Surveyor. It is submitted that
controversy between the parties can be resolved only on the basis of report
of Cadestral Surveyor. It is submitted that the appellate Court therefore
ought to have allowed the application.
10. On the other hand, the learned counsel for the contesting
respondents supported the impugned order.
11. I have perused the findings recorded by the trial Court. In my view
as the appeal is still pending, it would not be appropriate to make any
observation and it would be appropriate to direct the appellate Court to
decide the appeal on merit. The appellate Court shall, however, while
deciding the appeal record specific finding as to whether the disputed road
is part and parcel of the land owned by the petitioners or not. To record
such finding, the appellate Court, if necessary, shall take all necessary steps
permissible in law including appointment of Cadestral Surveyor. The
appellate Court shall decide other issues on it's own merits.
12. The Writ Petition is disposed of in aforesaid terms.
( N.R. BORKAR, J. )
