Bombay High Court
Nirmalabai Wd/O Laxman Bakal And Others vs Amol S/O Kamlakar Bakal And Others on 19 October, 2024
2024:BHC-NAG:12031
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
WRIT PETITION NO. 5085 OF 2019
( Nirmalabai wd/o Laxman Bakal and others ..vs.. Amol s/o Kamlakar Bakal and others )
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S.V. Sohoni, Counsel for the petitioners,
None for the respondents.
CORAM : ABHAY J. MANTRI, J.
DATE : 19-10-2024
Heard Mr. Sohoni, learned counsel for the
petitioners/original defendants and perused the record.
Despite service of notices, none appears on behalf
of the respondents.
2. The petitioners are challenging the common
order dated 19-06-2019 passed by the learned Civil
Judge, Jr. Dn., Balapur, below Exhibits 115, 120, and 121
in Regular Civil Suit No.50/2005, whereby rejected the
applications holding that "the whole measurement done
by the Deputy Superintendent of Land Record, Balapur
(for short "DSLR") is faulty," and further observed that 'it
is not possible for the DSLR to obey the directions of the
District Court'.
3. The learned Counsel for the petitioners
vehemently contended that the petitioners, as well as the
respondents, all raised objections about carrying out the
measurement by the DSLR before the trial Court.
However, the trial Court did not consider the objections
and committed an error in rejecting the same. Hence, he
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urged that the said order be quashed and set aside, and
the matter is required to be remanded back to the Trial
Court for consideration afresh.
4. He has also drawn my attention to Exhibits. 115,
120 and 121, whereby the petitioners and the
respondents have raised the objection about the
measurement carried out by the DSLR and the impugned
order. He further submitted that the District Court, by
order dated 01-03-2018, directed the trial Court to
appoint any cadastral surveyor of Taluka Inspector of
Land Record to measure the land pertaining to Gat
No.504 and demarcate the boundaries of land
admeasuring 1 H. 27 R. claimed by the plaintiffs and the
boundaries of the areas claimed by the defendants and
the matter was remanded back to the trial Court.
Therefore, he urged for allowing the petition.
5. Having considered the submissions of the learned
Counsel for the petitioner, it would be proper to
reproduce the operative part of the order passed by the
District Court in Regular Civil Appeal No.192/2009,
which reads thus :
"(i) The appeal is hereby partly allowed.
(ii) The impugned judgment and decree dated 30-
11-2009 rendered in Regular Civil Suit No.50/2005
by the learned Joint Civil Judge (Junior Division),
Balapur, is hereby quashed and set aside.
(iii) The matter is remanded back to the learned
Trial Court.
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(iv) The learned trial Court shall appoint any cadastral
surveyor or Taluka Inspector of Land Record (T.I.L.R.) as
Commissioner to measure the land bearing Gat No.504
and to show the boundaries of land admeasuring 1 H. 27
R. claimed by the plaintiff and the boundaries of the area
claimed by the defendants by virtue of registered sale-
deed dated 27-05-1970, in land bearing gat No.504 at
village Lohara, Tq. Balapur, District Akola.
(v) The commission charges shall be borne by the
defendants.
(vi) The learned trial Court shall frame proper issue
regarding title and possession of the plaintiff over
the suit property.
(vii) Both the parties are permitted to lead additional
evidence, if any, on the above issue. The learned trial
Court shall also take into consideration the additional
evidence led by the defendants in the present appeal
vide Exs. 31 to 33.
(viii) The learned trial Court shall decide the suit afresh
according to law within six months.
(ix) Parties are directed to appear before the
learned trial Court on 12-3-2018.
(x) Parties to bear their own costs.
(xi) R &P be sent to the learned trial Court on or
before 09-03-2018.
(xii) A copy of this judgment be sent to the learned
trial Court for information and necessary
compliance.
(xiii) Decree be drawn up accordingly."
6. Bare perusal of the said order reveals that the Ad-
hoc District Judge-1, Akola while remanding the matter,
has categorically directed the trial Court to appoint the
cadastral surveyor or Taluka Inspector of Land Record as
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Commissioner to measure the land bearing Gat No.504
and to show the boundaries of land admeasuring 1 H. 27
R. claimed by the plaintiffs and the defendants by virtue
of registered sale-deed dated 27-05-1970. So also, as per
clause (vi) and (vii) of the said order, the trial Court is
directed to frame the proper issue regarding the title and
possession of the plaintiffs over the suit property and
permit the parties to lead the evidence pursuant to the
issues and shall decide the matter afresh.
7. Pursuant to the said order, the petitioners and the
respondents have raised objections about the
measurement carried out by the DSLR, and all have
requested to discard the map and appoint a new
commissioner. However, the Trial Court has not
considered the said objections. On the contrary, the same
was filed, observing that "the whole measurement done
by the DSLR is faulty and, therefore, it is not possible for
the DSLR in a real sense to comply with the directions of
the District Court." In such an eventuality, it would be
proper for the learned Judge to direct the DSLR to
remeasure the land in the presence of all the parties by
following due procedure of law to determine the actual
facts in issue. Despite that, the learned Judge ignored the
said objections and filed the said objections. Therefore,
in my view, the said order is liable to be set aside, and it
would be proper to remand the matter to the trial Court
for consideration afresh on the said objections.
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8. In the light of the above discussion, I proceed to
pass the following order:
(i) The impugned common order dated
19-06-2019 passed below Exhibit Nos.115, 120 and
121 by the learned Civil Judge, Jr. Dn., Balapur, is
hereby quashed and set aside.
(ii) The matter is remanded to the Trial Court to
consider the said objections afresh by affording
opportunities to all the parties.
(ABHAY J. MANTRI, J.)
adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 24/10/2024 16:47:27
