Bombay High Court
Bhimrao Kisan Dhoble Thro. Poa ... vs Anjanabai Durgadas Bandgar on 1 August, 2024
2024:BHC-AUG:16997
(1) 928sa74.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
928 SECOND APPEAL NO. 74 OF 2019
BHIMRAO KISAN DHOBLE THRO. POA HOLDER-TANAJI
BHIMRAO DHOGALE
....Appellant
VERSUS
ANJANABAI DURGADAS BANDGAR
.....Respondent
Mr. S. V. Natu, Advocate for the appellant
Mr. D. P. Deshpande, Advocate for the respondent
CORAM : KISHORE C. SANT, J.
DATE : 01st AUGUST, 2024
P. C.
1. Heard the parties for sometime.
2. Parties have shown readiness to argue the appeal
even in absence of R & P, as the point involved is very short.
3. This appeal is by the original defendant against
whom there is a decree directing him to hand over possession of
90-R from East-North Corner of Block No. 155/2 to the plaintiff.
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It is the case of the plaintiff that she purchased the land block
No. 155/2 in the year 19-08-1997. In 1998 she purchased total
1.14 R. In 1998 she found that there is encroachment to the
extent of 90-R made by the defendant who happens to be
adjoining owner. She therefore filed a suit for possession. During
proceeding of the suit, the court appointed a Commissioner for
measurement o land. However, said report is not proved. Suit
was filed on the basis of measurement carried prior to lodging of
the suit. It is now the case of the appellant-original defendant
that court has relied upon the Surveyor's report which has
shown an encroachment to the extent of 90-R. He submits from
the record and from the notes of evidence that Surveyor in his
deposition accepted that he had not carried measurement in
presence of both the parties. He further points out that only the
land of the plaintiff was measured instead of entire gut No.155.
In the evidence of Surveyor he has categorically admitted that
he is not having receipts of notice to the defendant for carrying
the measurement. The learned advocate thus, submits that such
report should not have been relied upon by the courts below. In
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support of his submission, he relies on the judgment reported in
2019 (6) Mh.L.J. 287 in the case of Sudhakar Baburao Kulkarni
Vs Gorabai Thansing Marag and others.
4. Learned Advocate Mr. Deshpande vehemently
opposed the admission of the appeal stating that evidence is
rightly appreciated by both the courts. Suit itself is filed only
after getting the measurement done by the Surveyor by making
an application Exh.49. There was also an order passed by the
learned Tahasildar Exh.50. Thus it is only on getting the
measurement done, suit was filed. In both the courts there is no
dispute about title over the property or sale deed in favour of
the plaintiff etc.
5. On this Mr. Natu, learned advocate points out that
application for measurement was made only in respect of
property of the plaintiff and not for the entire gut number.
Unless entire gut number is measured, no proper findings can be
recorded and both the courts have failed in appreciating this
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aspect.
6. Learned advocate for respondent further submits
that if this court comes to a conclusion that fresh measurement
is necessary then in that case findings be called from the
concerned court by undertaking necessary exercise and same be
considered by keeping the present second appeal pending.
7. It is submitted by Mr. Natu, in that case he will loose
an opportunity to challenge the said findings before the first
appellate court. If the finding recorded by the learned trial court
is produced before this court, this court may not be in a position
to appreciate the evidence as can be done by the first appellate
court.
8. After hearing the parties, this court finds that instead
of admitting the second appeal and keeping it pending, it would
be in the interest of justice to remand the matter back to the
learned trial court only for the purpose of recording of finding
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on measurement, after measurement is carried out by giving
notice to both the parties and of the entire Gut No.155 of Bhosa,
Tq. & Dist. Latur in view of the judgment in the case of
Sudhakar Kulkarni (supra). Hence, the following order:-
ORDER
i] Second appeal is partly allowed.
ii] The judgments and decree passed by the courts
below are hereby set aside and suit is restored to file
of learned CJJD, Latur in RCS No. 215/2000.
iii] The learned trial court after restoration of the
suit shall appoint the Surveyor from the office of
TILR or DILR, Latur having jurisdiction of village
Bhosa.
iv] Parties are directed to remain present before
the learned trial court on 16-08-2024. If any of the
parties failed to remain present, learned trial court to
issue notice for securing the presence of the parties.
v] The plaintiff shall make fresh application for
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appointment of the Commissioner before the learned
trial court within two weeks from the date of
appearance.
vi] The learned Commissioner shall conduct local
investigation in accordance with provision of Oder
26 Rules 9 of the Cr. P. C. After making compliance of
giving notices to the parties and shall take
measurement of entire gut No.155 and for that
purpose shall also issue notices to other owners in
the said gut number.
vii] After report is submitted, the learned trial
court shall record findings only on the point of
measurement without touching the findings on any
other issue which are already recorded and to give
fresh decision.
viii] Entire exercise be completed within four
months from today.
ix] Measurement be carried out within two
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months.
x] The suit be disposed off within four months or
at the most by 31-12-2024.
xi] Let the parties bear the expenses in equal
proportion.
xii] Parties to act upon authenticated copy of this
order.
[KISHORE C. SANT, J.]
VishalK/928sa74.19
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