Bombay High Court
Prafulla Ramesh Sirsat vs Shrikrushna Ishanji Rothe And Others on 11 February, 2025
2025:BHC-NAG:1512
1 31-sa-444-23j.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 444 OF 2023
Prafulla Ramesh Sirsat,
Aged 25 years, Occ. Education,
R/o. Tandulwadi, T1, Khamgaon,
District Buldhana. . . . APPELLANT
(Original Plaintiff)
// V E R S U S //
1. Shrikrushna Ishanji Rothe,
Aged 60 years, Occ. Agriculturist
2. Pardeep Haribhau Rothe,
Aged 28 years, Occ. Agriculturist
3. Dnyandev Sukhdev Rothe
Aged 50 years, Occ. Agriculturist
All R/o. Hiwara Bk., Post Poraj,
Tq. Khamgaon, Dist. Buldhana. . . . RESPONDENTS
(Original Defendants)
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Shri R. T. Anthony, Advocate for appellant.
Shri A. M. Tirukh, Advocate for respondent nos. 1 and 2.
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CORAM :- M. W. CHANDWANI, J.
DATED :- 11.02.2025
ORAL JUDGMENT :-
Heard.
2. Admit. By consent of both the parties, the matter is taken
up for final hearing at the admission stage.
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3. By order dated 22.12.2023, the following two substantial
questions of law have been framed, which are reproduced herein-
under:-
"(I) Whether the Courts below were justified in dismissing the claim of the
plaintiff without considering the evidence of led by the appellant when it has
been proved that the appellant is the owner of land admeasuring 1.41 H.R.
out of Gat No. 278/6 which finding remained unchallenged and therefore,
was entitled for decree of removal of encroachment to the extent of the area
owned by the appellants ?
(II) Whether the finding arrived at by the Courts below is correct that the
measurement map which was prepared by the Surveyor could not be relied
upon for the reason that the same was prepared without taking joint
measurement and therefore, the encroachment could not be detected, and
thereby ignoring that the measurement done by the Surveyor was not
challenged by the respondent nos. 1 and 2 and on the contrary, the plea was
that even their land has been encroached thereby justify their illegal act ?"
4. In the present appeal, the appellant is challenging the
concurrent findings of the Courts below. The appellant filed a suit for
possession of the encroached portion on the basis of measurement of
land bearing Gat No. 278/6, Area 1H 42R owned by him. In the suit,
the plaintiff/appellant has contended that it is the defendants/
respondents, who encroached upon the land of the plaintiff bearing Gat
No. 278/6 to the extent of area of 1H 11R. The Trial Court held that
the measurement was done on the basis of 7/12 extract and the
encroachment has been recorded on the basis of the area mentioned in
the 7/12 extract. The Trial Court after considering the facts of the case
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opined that without joint measurement, encroachment cannot be
determined and non-suited the plaintiff. The appellant made an
unsuccessful attempt before the Appellate Court by filing Regular Civil
Appeal No. 45/2015. Being aggrieved with the confirmation of
dismissal of the suit by the Appellate Court, this Second Appeal came
to be filed.
5. Mr. Anthony, learned counsel appearing on behalf of the
appellant submitted that, if the Trial Court was of the view that
encroachment cannot be decided without joint measurement, the Trial
Court ought to have ordered joint measurement. According to him, if
the correct procedure for measurement of the land is not adopted then
re-measurement is required to be done. To buttress his submission, he
seeks to rely on the decision in the case of Vijay S/o. Shrawan Shende
Vs. State of Maharashtra 1.
6. Shri Tirukh, learned counsel for the respondents
vehemently objected to the submissions made by the learned counsel
for the appellant. According to him, there are concurrent findings
regarding measurement on the basis of 7/12 extract only and hence, no
substantial questions of law, more particularly substantial question of
law no. (I) does not arises at all. According to him, it was for the
appellant to prove the case and since, he failed to prove the
1 2009 (5) Mh.L.J. 279
4 31-sa-444-23j.odt
encroachment, the Trial Court was right in dismissing the suit filed by
the appellant. He further submitted that no substantial questions of
law arise in the appeal and hence, prayed for dismissal of the appeal.
7. Having heard the learned counsel for the appellant as well
the learned counsel for the respondents and having gone through the
judgments impugned, it transpires that the appellant has purchased the
agricultural land of Gat No. 278/6. After purchase, he got the land
measured through the Taluka Inspector Land Record. In the
measurement, the encroachment of the respondents on the land of Gat
No. 278/6 to the extent of 1H 11R has been shown. However, in wake
of the concurrent findings, the facts that the measurement has not been
done correctly and the fact that the encroachment was shown only on
the basis of 7/12 extract, no interference is required in the findings
recorded by the Trial Court as well as the Appellate Court that the
measurement report is not correct and therefore, substantial question
framed at Sr. No. (I) does not arise in this appeal.
8. This takes me to the substantial question of law at Sr. No.
(II). It appears from the findings of the Trial Court as well as the
Appellate Court that in view of the facts of the case the joint
measurement ought to have been done to find out the encroachment.
However, as held in the case of Vijay S/o. Shrawan Shende (supra), if
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the Court Commissioner has not adopted the correct procedure for the
measurement, the exercise of re-measurement is required to be done
and failure on the part of Cadestral Surveyor cannot be attributed to
the parties to the suit. Therefore, I find substance in the argument of
the learned counsel for the appellant that the Trial Court ought to have
directed joint measurement. Therefore, the matter is required to be
remitted to the Trial Court for deciding the issue of encroachment
afresh. The appellant is at liberty to apply before the Trial Court for
appointing a Court Commissioner for joint measurement of the land.
Therefore, substantial question of law no. (II) is answered accordingly.
Hence, I proceed to pass the following order:-
i) The appeal is partly allowed.
ii) The judgment and decree passed by 2nd Jt. Civil Judge
Junior Division, Khamgaon in Regular Civil Suit No. 6/2008 and
confirmed by the Ad-hoc District Judge-2, Khamgaon in Regular Civil
Appeal No. 45/2015 is hereby quashed and set aside.
iii) The matter is remanded back to the Trial Court for
deciding the issue of encroachment afresh.
iv) The parties to appear before the Trial Court on
10.03.2025.
(M. W. CHANDWANI, J.)
Signed by: RR JaiswalJaiswal
Mr. Rajnesh
Designation: PA To Honourable Judge
Date: 14/02/2025 16:57:10
