Bombay High Court
Shobha Sanjay Gadekar vs Godavari Pralhad Pimpale And Others on 8 May, 2024
2024:BHC-AUG:10312
1 wp 6815.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6815 OF 2022
. Shobha Sanjay Gadekar,
Age: 40 yrs. Occ. Household,
R/o. Dronagiri Nagar, Hadgaon,
Tq. Hadgaon, Dist. Nanded .. Petitioner
[Ori. Defendant no.3]
Versus
1. Godavari w/o Pralhad Pimpale,
Age: 45 yrs. Occ. Household,
R/o. Dronagri Nagar, Hadgaon,
Tq. Hadgaon, Dist. Nanded
2. The Chief Officer,
Municipal Council Hadgaon,
Tq. Hadgaon, Dist. Nanded.
3. The Collector,
College Office, Nanded,
Tq. and Dist. Nnaded .. Respondents
[Rep.No.1 Ori. Plaintiff &
Resp. No.2 and 3 Ori. Deft.
No.1 and 2]
...
Advocate for the Petitioner : Mr. S. B. Ghatol Patil
Advocate for Respondents No.1:
Mr. R. G. Tupe h/f. Mr. G. K. Muneshwar
Advocate for Respondent No.2:
Mr. R. R. Bangar h/f. Mr. A. N. Patale
...
CORAM : ARUN R. PEDNEKER, J.
Reserved On : 01.04.2024
Pronounced On : 08.05.2024
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JUDGMENT:
1. Heard.
2. By the present petition the petitioner challenges the
impugned order dated 22.03.2022 passed in Exhibit 31 filed by the
plaintiff for appointment of the court commissioner thereby allowed the
application of the plaintiff and appointed the court commissioner for
measurement of lands of respective parties and to ascertain
encroachment, if any.
3. The facts in brief are that the plaintiff / respondent filed the
suit for mandatory injunction against the defendant / petitioner, not to
interfere in the house property bearing no.3 Municipal No.455 in ward
No.17 situated at Drongiri Nagar, Hadgaon, Tq. Hadgaon, District.
Nanded. In the said suit the plaintiff also filed an Exhibit 5 application for
temporary injunction restraining the defendant from carrying out
construction. The suit is resisted by the petitioner by filing the written
statement and denied the entire contentions of the plaint. The plaintiff
filed an application for measurement of the land. The said application
filed at Exhibit 31 was resisted by the defendant on the ground that it
amounts to collection of the evidence for the plaintiff, so also, the
applications is vague. The trial court after considering the application for
appointment of the court commissioner so also the say filed by the
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defendant / petitioner held that the plaintiff and the defendant are
neighbours of adjacent houses and that in the plaint it is alleged that
defendant no.3 has made encroachment upon the plaintiffs property and
she has prayed for demolition of the encroached portion. The court
further observed that the court is not an expert to arrive at the conclusion
whether there is an encroachment or not and for that purpose
appointment of the court commissioner is necessary. Hence the
application is allowed and the Dy.L.R. Hadgaon is appointed as court
commissioner and directed to measure the property of the plaintiff and
defendant no.3, draw measurement map of house of plaintiff and the
commissioner is also directed to form opinion, whether there is
encroachment upon property of plaintiff, if yes, denote encroached
portion in his map and state which owner has made encroachment.
4. The order passed by the trial court is objected by filing the
present petition on the ground that it is the primary duty of the plaintiff
to lead evidence as regards the property of the plaintiff by showing
encroachment by producing sketch map of suit property and demarcating
encroachment. Once the primary evidence is laid by the plaintiff only if
the same is not sufficient the court can further go into the issue of the
appointment of the court commissioner.
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5. The learned counsel for the petitioner submits that order
directing appointment of the court commissioner in the instant case
amounts to collection of evidence for the plaintiff. The learned counsel
relies upon the following judgments:-
A. Dinanath Supdu Joshi Vs. Shriram and another, 2022
SCC OnLine Bom 6712,
B. Ghanshyam Dehariya Vs. Anaklal Dehariya, ILR 2014
MP 3114,
C. Prasanta Kumar Jena Vs. Chaudhari Purna Ch. Das
Adhikar, CLT 2005-720.
6. Per contra, the learned counsel appearing for the respondent
no.1 submits that the regular civil suit no.364 of 2021 is filed along with
application Exhibit-5 for mandatory injunction along with all the
necessary documents i.e. the copy of registered gift deed dated
26.07.2019 executed by her husband in favour of respondent no.1. In
terms of the gift deed, government taxes paid of the suit land.
Photograph is also produced showing crystal clear that there is an
encroachment upon the land of respondent no.1 an that interim relief
application is ready for hearing on it's own merits and it is necessary for
the appointment of the court commissioner so as to ascertain the
encroachment upon the property of the plaintiff. The order passed by the
trial court is a well reasoned order and the same needs no interference.
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7. This court in the case of Dinanath (supra), at para 8, has
observed as under:-
"8. The issue about the stage at which Court Commissioner
can be appointed for measurement of land under the
provisions of Section 75 r/w Order 26 Rule 9 of the Code of
Civil Procedure, 1908 has been dealt with by this Court in
the case of Shantaram Dattatray Kekan and others Vs.
Bhausaheb Karbhari Kekan and another vide judgment dated
05.12.2022 in Writ Petition No.14046 of 2021. After
analyzing divergent views taken in various judgments of this
Court, it is held as under :
8. After having considered the provisions of Code
under which Civil Court is empowered to appoint
Court Commissioner as well various decisions of this
Court on the subject it is clear that, there is no hard
and fact Rule that Court Commissioner can be
appointed only at a particular stage. This Court in few
decisions has permitted appointment of Court
Commissioners even before commencement of trial
and in some cases appointment of Court
Commissioners before commencement of trial is held
to be erroneous. In my view, the decisions are
rendered in facts of each case. However, common
thread that runs through all the above decisions is as
regards the principle that a Court Commissioner can
never be appointed in order to enable parties to collect
evidence. It is on account of this principle that in most
of the cases this Court has held that even before a
party adduces his evidence, he cannot seek
appointment of Court Commissioner. However, if the
facts of a particular case requires the Court to
ascertain the physical status of the land, the Court's
power to appoint Court Commissioner at any stage
does not appear to be circumscribed. It all depends
upon facts and circumstances of each case.
(emphasis supplied)"
6 wp 6815.2022
8. This court has held in various judgments that the plaintiff
has to primarily lead the evidence about the suit property along with the
sketch map showing encroachment. There is no bar for the court to
appointment the commissioner at any particular stage of the trial,
however, common thread amongst various judgments of this court is that
the court commissioner can never be appointed in order to enable the
parties to collect evidence. Thus, primarily, the plaintiff has to
produce evidence along with map and show encroachment. In the event,
the court is unable to reach conclusion on the basis of evidence produced
or finds it necessary that evidence needs further elaboration, the court
may appoint commissioner under Order 26 Rule 9 of the CPC.
9. The suit is at a preliminary stage and Exhibit 5 application is
ready to be decided. The petitioner has to prima facie lead evidence to
establish his case and that the evidence cannot be gathered by the court
commissioner so as to decide the extent of encroachment. The order of
the trial court indicates that the trial court has gone into the inquiry of
the allegation made by the plaintiff and to ascertain encroachment the
court has appointed the court commissioner. It has not referred to any
evidence of the plaintiff as regards the sketch map, such approach of the
trial court is not acceptable in view of the various judgments of this court
that the court while appointing the court commissioner cannot collect
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evidence on behalf of the parties. The parties have to make out their case
by leading evidence and based on the evidence given by the parties the
court may determine the appointment of the court commissioner under
Order 26 Rule 9 of the CPC for the purpose of elucidating any matter in
dispute and may issue summons to such person as it thinks fit directing to
make such investigation and to report thereon to the court.
10. It is the primary duty of the parties to lead evidence to
support it's case. The court, for the purpose of further elucidating any
matter in dispute after considering the evidence of the parties may
appoint the court commissioner directing him to make such investigation
as the court deems necessary.
11. The local investigation of the court commissioner is
evidence in the matter in terms of the Order 26 Rule 10 of the CPC
together with his report in writing signed by him.
12. Thus, in the instant case, since the preliminary stage of
leading evidence has not been crossed or no material has been produced
by the plaintiff on the basis of which the trial court comes to the
conclusion that there is prima facie encroachment and that it is further
necessary to obtain a report of the court commissioner that the court
commissioner is required to be appointed by the trial court.
8 wp 6815.2022
13. The trial court in it's impugned order observed that the court
commissioner should measure the property, prepare the map and has to
ascertain which owner has made encroachment and denote the
encroached portion in the map. The order of the trial court amounts to
collection of evidence for the parties and ascertaining encroachment
is an essential judicial function. It is only after the parties lead their
evidence that an application for appointment of the court commissioner
could have been entertained in the instant case.
14. In view of the same, the impugned order is set aside,
however, liberty is reserved that after recording the evidence of the
parties in order to clarify the ambiguity if any in the evidence then either
of the party is at liberty to file application for the appointment of the
court commissioner for measurement of the property and the court will
consider the same in accordance with law.
15. With the above observations, the writ petition is disposed of.
[ARUN R. PEDNEKER, J.]
marathe
