Bombay High Court
Irfan Ahmed Khalil Ahmed Shaikh vs Irfan Shauqat Shaikh on 25 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:4616
kishor 1/4 18 SA 324 of 2023 (C) .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 324 OF 2023
WITH
INTERIM APPLICATION NO.13178 OF 2023
Irfan Ahmad Khalil Ahmed Shaikh ...Appellant
Versus
Irfan Shauqat Shaikh ...Respondent
....
Mr. Sachin Gite, for Appellant.
....
CORAM : SANDEEP V. MARNE, J.
DATED : 25 JANUARY 2024.
P.C. :
Challenge in the present Appeal is to the Judgment and Order
dated 27 December 2022 passed by the Extra Joint District Judge, Niphad
dismissing Appellant's Regular Civil Appeal No.104 of 2016 and confirming
decree dated 30 July 2016 passed by Civil Judge, Jr. Division, Chandwad.
2. Plaintiffs instituted Regular Civil Suit No.123 of 2011 seeking
removal of encroachment on suit property bearing City Survey No.1418. In
the suit, Deputy Superintendent of Land Records was appointed as Court
Commissioner to carryout measurement. The Court Commissioner carried
out measurement and submitted report with map which indicates
encroachment by Defendants on Plaintiff's land bearing City Survey No.1418.
Defendants attempted to dispute measurement map before the Trial Court on
kishor 2/4 18 SA 324 of 2023 (C) .doc
the ground that the Court Commissioner did not measure Defendant's land.
The Trial Court, however, repelled that objection on the ground that
Defendant did not raise any objection at the time of measurement and did not
insist that their land should also be measured. Trial Court accordingly
accepted measurement map and proceeded to decree the suit directing
Defendants to remove the encroachment. The Appellate Curt has confirmed
decree of the Trial Court, hence the present Appeal.
3. Mr. Gite, the learned counsel appearing for Appellant would
strenuously urge that the Trial Court had directed conduct of joint
measurement in respect of Plaintiff's property bearing City Survey No.1481 as
well as Defendants property bearing City Survey No.1391 and 1393. Contrary
to the said direction of the Trial Court, Deputy Superintend of Land Records
measured only Plaintiff's property bearing City Survey No.1481. He would
submit that inference of the encroachment could not have drawn on the basis
of such faulty measurement. He would rely on the Judgment of this Court in
Rambhau Daulatrao Mule & Ors. Vs. Balabhau Pandharinath Kachre & Ors.,
2020 (2) Bom. C.R. 17 in support of his his contention that carrying out joint
measurements of properties of both Plaintiffs and Defendants is necessary in
every suit for removal of encroachment.
4. I have considered submissions canvassed by Mr. Gite. Non-
conduct of measurement of Defendant's property bearing City Survey
No.1391 and 1393 is the issue raised by the Appellant in the present Appeal.
It appears that said objection was raised by Appellant before the Trial Court,
which came to be rejected in paragraph No.17 of the Judgment holding that
Defendant did not raise objection about non-measurement of their property
kishor 3/4 18 SA 324 of 2023 (C) .doc
at relevant time. However when the Trial Court's decree was challenged by
the Appellant before District Judge, perusal of the Appeal memo would
indicate that, the issue of non-conduct of measurement of Defendant's land
bearing City Survey No.1391 and 1343 was not even pleaded in the Appeal
memo. Thus, Defendant did not urge before the First Appellate Court that
measurement of land bearing City Survey No.1391 and 1393 was of vital
importance for drawl of inference of encroachment. Now at the stage of
Second Appeal, the said objection is sought to be raised when the First
Appellate Court did not have the benefit of considering the same. In my view,
on account of failure on the part of Appellant to raise the issue of non-
conduct of measurement of land bearing Survey No.1391 and 1393 before the
First Trial Court, the Appellants are precluded from raising the same in the
present Appeal, considering the facts and circumstances of the case. In this
case, the Deputy Superintendent of Land Records has measured Plaintiff's
property bearing Survey No.1481 and has fixed boundaries thereof. While
fixing the boundaries, the Deputy Superintendent of Land Records has
observed that some portion of land bearing Survey No.1481 is actually in
possession of Defendant. Based on the said map prepared by the Deputy
Superintend of Land Records, Trial Court has proceeded to decree the suit.
5. Mr. Gite's reliance on the Judgment of this Court in Rambhau
Daulatrao Mule (supra) would not cut any ice. In that case, the measurement
map prepared by Cadastral Surveyor prior to filing of the suit was relied on.
No notice of conduct of survey was given to the Defendants. Apparently joint
measurement was not carried out. These are the factors why this Court
proceeded to reject the measurement conducted by the Cadastral Surveyer
and directed that the Surveyer from the office of T.I.L.R. to be appointed for
kishor 4/4 18 SA 324 of 2023 (C) .doc
conduct of joint survey for hearing both the parties. In the present case,
though the Plaintiff had relied upon survey prepared prior to filing of the suit,
Trial Court directed conduct of fresh measurement through Deputy
Superintend of Land Records. Measurement were conducted by the Deputy
Superintend in presence of both the parties. Therefore Judgment in Rambhau
Daulatrao Mule would have no application to the facts of the present case.
6. Considering overall conspectus of the case, no substantial
question of law is involved in the present Appeal. Appeal is accordingly
rejected. Since the Appeal is rejected, nothing survives in the Interim
Application and it is also disposed of.
SANDEEP V. MARNE, J.
