Bombay High Court
Shri.Nathyaba Vishnu Malgunde And ... vs Ganpat Khandu Chopade And Others on 5 March, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:11231
902-SA-407-2018.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.407 OF 2018
Nathyaba Vishnu Malgunde And Others ...Appellants
Versus
Ganpat Khandu Chopade And Others ...Respondents
--------------------
Adv. Tushar Sonawane a/w Adv. P. S. Hagare, Pooja Satpute for the
Appellants.
Adv. Rupesh Zade a/w Priyanka Gupta for Respondent Nos. 1 & 2
---------------------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : MARCH 5, 2024
P. C. :
1. The present Appeal is filed by the original Plaintiffs being
dissatisfied by the judgment dated 4th October 2017 passed by the
Appellate Court in Civil Appeal No. 30 of 2012 dismissing the Appeal
thereby upholding the judgment of dismissal of suit by the Trial Court
dated 17th January, 2012 passed in RCS No. 189 of 1998.
2. The facts as borne out from the record are that the Plaintiffs and
Defendants are owners of agricultural land bearing Gat No. 174 and Gat
No. 175 respectively. Gat No 175 is on the eastern side of Gat No. 174.
According to the Plaintiffs from the year 1990 onwards the Defendants
had encroached upon the suit property. It was contended that the
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Plaintiffs had measured the suit property on 26 th June, 1992 and found
that the Defendants had encroached to the extent of six gunthas land and
that the Defendants are trying to cut the trees in the area in possession of
the Plaintiff and hence, the suit for removal of encroachment and
permanent injunction was filed.
3. The suit came to be resisted by the Defendants claiming that the
trees are standing on the property owned by the Defendant. The parties
went to trial. The judgment of the Trial Court shows that the Plaintiffs
and the Defendants had independently measured their respective Gat
numbers and there was no joint measurements. The Trial Court discarded
the measurement map of the Plaintiffs and accepted the Defendants map
and dismissed the suit. As against this the Appeal filed by the Plaintiffs
being Regular Civil Appeal No. 30 of 2012 came to be dismissed. The
Appellate Court observed that there was no joint measurements of Gat
Nos. 174 and 175, however, held that the conclusion of the Trial Court
was correct that the Plaintiff had proved the case and as such, rejected the
Appeal.
4. Heard. Admit on the following substantial question of law:
i) Whether the Trial Court and first Appellate Court
had committed an error in law by not directing
measurement of both Gat No. 174 and Gat No. 175 in
the absence of an agreed map?
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ii) Whether the Courts below committed an error in law
in deciding the suit of encroachment without a duly
drawn up measurement map by following due
procedure governing the measurements?
5. In view of the limited controversy involved, learned Counsel for
the parties agree that the Appeal can be heard finally on the substantial
questions of law framed.
6. Heard Mr. Sonawane, learned counsel for the Appellants and Mr.
Zade, learned counsel for the Respondents.
7. Learned counsel for the Appellant would submit that it is settled
position of law that in case of encroachment, in the absence of an agreed
map, it is necessary that the Court Commissioner be appointed to conduct
the joint measurements of both the properties for the purpose of finding
out the extent of encroachment which has not been done in the present
case. He submits that the findings of the Trial Court and Appellate Court
suffers from perversity as the same is contrary to the position in law about
the necessity of duly drawn measurement map in boundary dispute. He
submits that there are various authorities to support the remand of the
matter to the Trial Court by setting aside the impugned judgment and
directing the appointment of the Court Commissioner for carrying out
measurements pursuant to which, the Trial Court can be directed to
decide the suit afresh. He relies upon the following decisions:
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(i) Hariram Tukaram Shinde vs Baliram Bapurao
Washimbe [decided on 20th September, 2021 in Second
Appeal No .155 of 2013].
(ii) Sulemankhan s/o Mumtajkhan & Ors vs Smt.
Bhagirathibai we/o Digambar Asalmol & Anr [2014 (5)
ALL MR 552].
(iii) Ushabai w/o Sharadchandra Bannore vs Wasudeo s/o
Baliramji Mehare & Ors. [2004(2) Mh.L.J.]
-
(iv) Hemavathi & Ors vs V.Hombegowda & Another
[2023 SCC Online SC 1206].
8. Per contra, learned counsel for the Defendants on instruction
would submit that the Defendants are not averse to the joint
measurements of the properties however the cost has to be borne by the
Plaintiffs to which Mr. Sonawane on instructions of his client who is
present in Court submits that the entire cost will be borne by the
Plaintiffs.
9. Considered the submissions and perused the record.
10. The suit was filed recovery of possession of the encroached portion
and for perpetual injunction. The case of the Plaintiffs was based on the
measurement carried out on 26th June, 1992 which according to the
Plaintiffs showed encroachment of 6 gunthas around the year 1990. This
map was not admitted by the Defendants and the Defendants relied upon
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measurements which was carried out on 4th July, 2008. The Trial Court
accepted the map of the Defendants and dismissed the suit. The Appellate
Court although found that there was no joint measurement held that the
conclusion of the Trial Court was correct.
11. The admitted position is that neither the Plaintiffs nor the
Defendants had given notice to each other about the measurements being
carried out and the parties had individually carried out measurements.
Further, Gat No. 174 and Gat No. 175 were not jointly measured. It is
necessary that both the Gat Nos. are measured and boundaries fixed to
determine the extent of encroachment. There ought to have been joint
measurement before concluding whether there is encroachment or not.
Even at the stage of First Appeal, the Appellate Court could have
exercised the power under Order 26 Rule 9 of CPC to direct joint
measurment, which power was not exercised by the first Appellate Court.
Neither the Trial Court nor the Appellate Court exercised their powers
under Order 26 Rule 9 of CPC to appoint Court Commissioner and get a
duly drawn measurement map by competent Government Official. The
findings of the Courts being contrary to the applicable law suffers from
perversity. This Court in case of Sulemankhan s/o Mumtajkhan and
Others Vs Smt. Bhagirathibhai wd/o Digamber Asalmol and Another,
[2014(5) ALL MR 552 ] has held thus:
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"This Court has time and again expressed opinion about
the necessity of duly drawn measurement plan/map in any
suit in which there is a boundrary dispute. The Trial Court
as well as the 1st Appellate Court which are Court of Facts,
are duty-bound to ascertain that a map is drawn to the
appropriate scale by competent government official from
the office of TILR or DILR, as the case may be, so that
measurement of suit property is carried out in presence of
the parties after due notice to them or even if they are
absent, so as to ensure that the suit property is properly
measured, boundraries are fixed and boundary dispute is
finally settled by producing map in the Court by the plan
maker who can prove its genuineness by deposing in
support of such plan/map, if it is so necessary in the
absence of admission for exhibiting the map."
12. The Trial Court and the Appellate Court without noticing the
settled position in law and without noticing that there is no agreed map
and no joint measurement of Gat Nos. 174 and 175 committed an error
in law in not exercising power under order 26 Rule 9 of CPC. In absence
of duly drawn up measurement map the suit for encroachment could not
have been decreed. The substantial questions of law are answered
accordingly. In view of the above discussion, the judgments of the Trial
Court and the First Appellate Court are set aside with the following
directions:
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ORDER
1. The second appeal is hereby allowed.
2. The judgment and decree passed by the learned Jt.
Civil Judge, Junior Division, Baramati in RCS No. 189 of
1998 dated 17th January, 2012 and judgment passed by
the learned Ad-Hoc District Judge-3, Baramati, District-
Pune in RCA No.30 of 2012 dated 04th October, 2017 are
hereby set aside.
3. Regular Civil Suit No.189 of 1998 is restored to the
file of learned Jt. Civil Judge, Junior Division, Baramati
with following directions.
A) After appearance of the parties before the
Trial Court, original plaintiff to file application
for appointment of Court Commissioner under
Order XXVI Rule 9 of Code of Civil Procedure,
within a period of three (03) weeks, for getting
the lands measured.
B) The Trial Court shall appoint Taluka
Inspector of land Records/ (Deputy
Superintendent of land Records) as Court
Commissioner under Order 26 Rule 9 of the
Code of Civil Procedure, 1908.
C) After the Court Commissioner is
appointed, plaintiff to deposit the requisite
charges with the concerned authority within a
period of two (02) weeks thereafter.
D) The Court Commissioner shall prepare
902-SA-407-2018.doc
measurement map showing the boundaries of
the land Gat Nos. 174 & 175 and with
conclusion as to whether there is any
encroachment or not and submit report before
the Trial Court within a period of four months,
after the order is given to the Commissioner.
4) Failure on the part of the Plaintiffs to file such
application for appointment of Court Commissioner,
should be taken adversely, which may also result in
dismissal of the suit.
5) The Trial Court to decide the suit afresh by giving
opportunity to both the parties to lead evidence, if
necessary and so advised.
6) Since the suit of 1998 is being restored today to the
file of learned Jt. Civil Judge, Junior Division, Baramati
the Trial Court should give priority to dispose of the suit
and to decide the same within a period of one year from
the production of authentic copy of the order of this
Court.
7) Both parties to appear before the learned Trial Court
on 26th March, 2024.
(SHARMILA U. DESHMUKH, J. )
Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 07/03/2024 19:22:10
