Bombay High Court
Shri.Ravindra Dagadu Shinde (Mhetre) vs Shri.Shankar Dattu Raut on 6 February, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
26 SA 203-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 203 OF 2017
WITH
CIVIL APPLICATION NO. 455 OF 2017
Ravindra Dagadu Shinde (Mhetre). ...Appellant.
Versus
Shankar Dattu Raut. ...Respondent.
------------
Mr. V. S. Talkute for the appellant.
Mr. Surel S. Shah and Mr. Saakshaf Relekar for the respondent.
------------
Coram : Sharmila U. Deshmukh, J.
Date : February 6, 2024.
P. C. :
1. Being dissatisfied with the judgment of first appellate Court
dated 5th October 2016 by which the appeal came to be allowed
dismissing the suit being RCS No. 18 of 2009 decreed by the trial
Court vide judgment and order dated 7th December 2012, the original
plaintiff is before this Court.
2. Facts of the case are that RCS No. 18 of 2009 was instituted by
the appellant for recovery of encroached portion. The case of
plaintiff is that he had purchased suit property in the year 2002 and in
Patil-SR 1 of 7
26 SA 203-2017.doc
June 2008, an application was made for measurement of the suit
property which came to be measured on 30th July, 2008. After the
map of measurement was received by the plaintiff on 6 th November
2008, the plaintiff learnt about encroachment of defendant in the suit
property to the extent of 4 square meters and as such filed the suit
for recovery of encroached portion.
3. The suit was resisted by the defendant. The defendant also
instituted suit bearing RCS No. 366 of 2008 seeking decree of
perpetual injunction against the plaintiff. The defence of defendant
was that there is a three feet boundary in between the land of
plaintiff and defendant and hut and cattle-shed which is stated to
have been erected in the encroached portion is in fact situated near
the common boundary. It is further contended that in collusion with
the surveyor, the plaintiff got his land measured and in fact it is the
plaintiff who is trying to encroach upon the land of defendant.
4. Parties went to trial. The trial Court by order dated 7 th
December 2012 partly decreed the suit and directed defendant to
hand over possession of the encroached portion of 4 square meters.
As against this, the defendant approached the appellate Court. The
appellate Court considered the evidence of surveyor who had
Patil-SR 2 of 7
26 SA 203-2017.doc
measured the land prior to the institution of suit and on the basis of
admission of surveyor held that the evidence of surveyor cannot be
accepted to prove the encroachment in suit land to the extent of 4
square meters and as such dismissed the suit.
5. Heard Mr. V. S. Talkute, learned counsel appearing for the
appellant and Mr. S. S. Shah, learned counsel appearing for the
respondent.
6. Learned counsel appearing for the appellant would submit that
as the suit was for removal of encroachment, the appointment of
Court Commissioner was necessitated. He submits that the appellate
Court has reversed the findings of trial Court for the reason that
evidence of surveyor cannot be accepted as there were certain
defects in the manner in which property was measured. He submits
that the civil application has been filed for appointment of Court
Commissioner and the said procedure is not unknown to law. He
submits that as the suit was for removal of encroachment, the Court
Commissioner be appointed by this Court and the matter be
remanded to the appellate Court to be decided afresh after taking
into consideration the report of Court Commissioner.
7. Per contra learned counsel appearing for the respondent
Patil-SR 3 of 7
26 SA 203-2017.doc
submits that it was the specific case of respondent that there is a 3
feet boundary between the lands of plaintiff and defendant and that
hut and cattle-shed has been constructed on the boundary. He
submits that it was the duty of plaintiff to make necessary application
before the trial Court for appointment of Court Commissioner which
has not been done as such the order of appellate Court is required to
be upheld. He submits that there is no substantial question of law
which arises in the present case.
8. Considered the submissions and perused the record.
9. It is not disputed that the suit is filed seeking removal of
encroachment based on the surveyor's report which was obtained by
the plaintiff prior to the institution of suit. The trial Court has
accepted the said report and had partly decreed the suit. The first
appellate Court on the basis of cross-examination of surveyor
observed that the surveyor did not fix the points to start
measurement of the disputed land and that the surveyor also did not
cause measurement of entire City Survey No. 552. The appellate
Court also held that no notices were issued to the defendants. The
appellate Court held that the surveyor has not carried out the
measurement as per the procedure required to be followed and as
Patil-SR 4 of 7
26 SA 203-2017.doc
such held that the evidence of surveyor cannot be accepted to prove
the encroachment in the suit land to the extent of 4 square meters. It
is settled that in case of encroachment it is desirable to appoint Court
Commissioner to measure the land and ascertain the extent of
encroachment, if any.
10. Considering that the appellate Court has not accepted the
evidence of surveyor and the suit was for removal of encroachment, in
my view, the appellate Court could have directed the appointment of
Court Commissioner for the purpose of measuring the properties to
find out if there is any encroachment. No such procedure was
followed by the first appellate Court.
11. In view of the above, following substantial question of law
would arise for consideration :
Whether the first appellate Court committed an error of law in
not appointing the Court Commissioner for carrying out
measurement after observing that the measurement carried
out by Surveyor (PW-2) was inaccurate as the map was
prepared without following the proper procedure ?
12. In the present appeal, the appellant has filed civil application
seeking appointment of Court Commissioner for measurement of
properties. Learned counsel appearing for the appellant submits that
Patil-SR 5 of 7
26 SA 203-2017.doc
in view of the substantial question of law which has arisen in the
present case and considering the decision of the Apex Court in the
case of Haryana Waqf Board v. Shanti Sarup [(2008) 8 SCC 671], the
matter may be remanded to the appellate Court for considering the
issue afresh after appointing Court Commissioner who would measure
the land and would submit a report to the appellate Court.
13. Considering that the suit was for removal of encroachment and
the first appellate Court has reversed the finding by not accepting the
measurement of surveyor as map was without following proper
procedure in view of the nature of dispute, it is necessary that a Court
Commissioner be appointed who would carry out the measurement in
accordance with law and submit a report to the appellate Court who
would then decide the appeal on the basis of Court Commissioner's
report.
14. Having regard to the discussion above, TILR, Pandharpur is
appointed as Court Commissioner to measure the suit properties and
submit a report to the appellate Court. TILR, Pandharpur to carry out
measurement/survey of suit lands and submit a report to the
appellate Court within a period of eight weeks from the date of
production of a copy of this order. The appellate Court is directed to
Patil-SR 6 of 7
26 SA 203-2017.doc
decide the appeal afresh after considering the report of TILR and after
hearing the parties.
15. The second appeal and civil application are disposed of in above
terms.
[Sharmila U. Deshmukh, J.]
Patil-SR 7 of 7
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 14/02/2024 15:42:25
