Bombay High Court
Mangesh Raghupati Mohod And Another vs Narendra Bhimrao Mohod And Others on 2 January, 2025
2025:BHC-NAG:74
-- 1 -- WP 3229.2020 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3229 OF 2020
1) Mangesh Raghupati Mohod
age : Major, Occu : Agriculturist .. Petitioner
2) Umesh Raghupati Mohod
age : Major, Occu : Agriculturist
Both R/o Kural-Purna Po.Kural-Purna
Tq chandurbazar Distt. Amravati
Versus
1) Narendra Bhimrao Mohod
age : Major, Occu : Agriculturist
R/o Kural-Purna Po.Kural-Purna
Tq Chandurbazar Distt. Amravati
2) Madhukar natthuji Wasankar
age : 50 years, Occu : Agriculturist
R/o Behind Sant Gadge Maharaj
Mandir Gadge Nagar, Amravati Tq
and Distt Amravati
3) Bhimrao Sankarrao Mohod
age : 70 years, Occu : Agriculturist
R/o Kural-Purna Po.Kural-Purna .. Respondents
Tq Chandurbazar Distt. Amravati
4) Rajendra Bhimrao Mohod
Age : 55 years, Occu : Agriculturist
R/o Kural-Purna Po.Kural-Purna
Tq Chandurbazar Distt. Amravati
5) Surendra Bhimrao Mohod
Age : 53 years, Occu : Agriculturist
R/o Kural-Purna Po.Kural-Purna
Tq Chandurbazar Distt. Amravati
6) Dnyanneshwar Narayanrao Kalkar
Age : 54 years, Occu : Agriculturist
R/o Kural-Purna Po.Kural-Purna
Tq Chandurbazar Distt. Amravati
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7) Vishnupant Naraynrao Kalkar
Age : 56 years, Occu : Agriculturist
R/o Kural-Purna Po.Kural-Purna
Tq Chandurbazar Distt. Amravati
8) Vidyadhar Madhukarrao Mohod .. Respondents
Age : 47 years, Occu : Agriculturist
R/o Kural-Purna Po.Kural-Purna
Tq Chandurbazar Distt. Amravati
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Mr. Anand Deshpande, Advocate for petitioner.
None for the respondents.
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CORAM : ABHAY J. MANTRI, JJ.
DATED : JANUARY 02, 2025
ORAL JUDGMENT
I heard the learned counsel for the petitioners at length.
None appears for the respondents though served.
(2) The petitioners/original plaintiffs challenged the order
dated 24/01/2020 passed by the learned Ad-hoc District Judge-2
Achalpur, below Exh.29 in R.C.A. No.15/2009, thereby rejecting the
petitioner's application for appointment of a Court Commissioner to
conduct the joint measurement of plaintiffs' and defendants' fields.
Succinctly, the facts are as under.
(3) The petitioners are the original plaintiffs who filed a suit
for declaration and recovery of possession of the encroached land. The
suit was dismissed on 05/01/2009 as the plaintiffs failed to prove that
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the defendants had carried out encroachment over the suit field.
(4) The said judgment and order have been challenged in
Regular Civil Appeal No.15/2009 before the first appellate Court; the
same is pending. During the pendency of the said appeal, on
14/01/2019, the petitioners moved the application under Order XXVI
Rule 9 of the Civil Procedure Code (for Short-"CPC") for the
appointment of a Court Commissioner for joint measurement of fields.
After considering the facts of the case, the appellate Court rejected the
said application. Being aggrieved by the said order, the petitioners
preferred this writ petition.
(5) Learned Counsel for the petitioners vehemently
contended that in view of the provisions of Order XLI Rule 33 of the
CPC, the appellate Court is empowered to pass any order which ought
to have been passed as the case may require. However, the appellate
Court failed to exercise the jurisdiction vested in it and thereby erred in
rejecting the application.
(6) He further contended that in view of the law laid down in
Jamir Khan s/o Amir Khan vs. Dharamchand s/o Roopchand
Sawala and others reported in 2018 (1) Mh.L.J. 174, the
petitioners are entitled to appoint Court Commissioner to carry out the
joint measurement of the fields in question. However, the learned
appellate Court rejected the application, holding that if the Court
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Commissioner is appointed, it will certainly amount to a collection of
evidence. The learned Judge has not considered the settled position of
law that for the purpose of identifying the boundaries of the suit
property, the appointment of Court Commissioner is necessary. In fact,
the learned appellate Court sou-motu ought to have exercised the said
power to determine the controversy between the parties.
(7) He further canvassed that the learned trial Court has
come to the conclusion that the measurement carried out by the Taluka
Inspector of Land Records was not according to the procedure laid
down in the Act and discarded the said measurement. Therefore,
re-measurement of the suit property is necessary to decide the real
controversy between the parties. As the petitioners have no option but
to opt to appoint a Court Commissioner for joint measurement, he has
submitted that passing of the order by the learned appellate Court is
improper and contrary to the settled position of law, and therefore, the
order is liable to be set aside.
(8) He further propounded that to curtail the multiplicity of
litigations, it would be proper to permit the petitioners/plaintiffs to
appoint a Court Commissioner to determine the controversy between
the parties. However, the learned trial Court did not consider this
aspect and the settled position of law and erred in rejecting the
application. Therefore, he has prayed for allowing the petition by
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quashing and setting aside the impugned order.
(9) To buttress his submissions, learned Counsel for the
petitioners is relying on the following judgments :
(a) Jameer Khan (supra) and pointed out paragraphs
17, 18 and 19;
(b) Sanjiv K. Simepuruskar v.s Dhaku Tukaram
reported in 2023 SCC OnLine Bom 2230 and pointed
out paragraphs 9, 10, 12 and 16;
(c) Kashinath s/o Ramkrishna Chopde vs.
Purushottam Tulshiram Tekade and others reported
in 2005(4) Mh. L. J. 471 and pointed out paragraphs
14 and 15; and
(d) Haryana Waqf Board vs. Shanti Sarup and others
reported in (2008) 8 Supreme Court Cases 671 and
pointed out paragraphs 4, 5, and 7.
And submitted that in view of the mandate laid down in the
afore-cited judgments, it would be proper on the part of the learned
appellate Court to appoint a Court Commissioner to conduct joint
measurement of the fields instead of rejecting the same.
(10) I have appreciated the submissions of learned Counsel
for the petitioners, perused the impugned order and record, as well as
the judgments relied upon by the petitioners.
(11) At the outset, it appears that the petitioners are the
original plaintiffs who filed a suit for declaration and recovery of
possession of the encroached land. The suit was dismissed on
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05/01/2009. Wherein the learned trial Court has categorically observed
that although plaintiffs have examined the cadastral surveyor (PW-1) to
prove encroachment over the suit fields, however, he failed to prove
the same. The cadastral surveyor could not state who had encroached
the land and how much area of land was in possession of them. Thus,
the plaintiffs have failed to prove that the defendants have carried out
encroachment over the suit field and therefore, dismissed the suit.
(12) It is pertinent to note that the petitioners filed the suit;
therefore, it was incumbent upon them to prove that the defendants
made encroachment over the suit fields by adducing cogent evidence.
Though the petitioners examined the cadastral surveyor in support of
their case, they failed to prove the encroachment over the suit
property, and therefore, the suit was dismissed.
(13) It further appears that against the said judgment and
order, the petitioners have preferred Regular Civil Appeal No.15/2009
before the appellate Court; the same is pending. During the pendency
of the said appeal, on 14/01/2019, the petitioners moved the
application under Order XXVI Rule 9 of the C.P.C. for the appointment
of a Court Commissioner for joint measurement of fields, as the
defendants have denied the accuracy of the measurement map and
learned trial Court has also observed that "measurer has not measured
the fields of the plaintiffs and defendants by following due procedure of
the law."
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(14) After considering the facts of the case, the appellate
Court rejected the said application, holding that "the appointment of a
Court Commissioner to measure the fields in dispute would amount to
the reopening of the trial, and the same is not permissible and
appropriate before the appellate Court." It is further observed that "no
explanation is forthcoming on the part of the petitioners as to why they
have not availed the opportunity of conducting joint measurement of
the entire survey number before the trial Court. Therefore, the
petitioners cannot take advantage of their own negligence." "It is a
settled principle of law that a Court Commissioner would not be
appointed to collect the evidence."
(15) Perused the judgment in Jamir Khan (supra) wherein the
facts were that 'the first appellate court remanded the matter for re-
measurement of the land in dispute by government surveyor, as the
suit was dismissed on the count that measurement of the land was not
found correct and proper. The said order was challenged before this
Court. This Court upheld the said judgment and order, holding that "the
first appellate Court has rightly sent the matter for re-trial, as entire
controversy has to be decided again afresh." In the said case, the first
appellate Court did not appoint the Court Commissioner but remanded
the matter to the trial Court for re-trial.
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(16) Similarly, in Sanjiv Simepuruskar (supra), the plaintiff
therein had moved an application before the learned trial Court to
appoint a Court Commissioner to determine the controversy between
the parties and the said application was rejected. Therefore,
considering the law laid down in the 'Surya Dev Rai' case, this Court
held that to facilitate the progress of the suit, jurisdiction under Article
227 ought not to be declined and allowed the application and permitted
the petitioner/original plaintiff to appoint a Court Commissioner.
(17) In the case of Kashinath (supra), the suit was filed for
declaration that the suit site is owned by them and restrained the
defendants from interfering with their possession over the suit site. The
decree was drawn on the basis of the map annexed with the plaint. So,
the question of the law involved in the appeal was 'whether the map
which formed the part of the decree is admissible in evidence in view of
Section 83 of the Indian Evidence Act and whether the decree passed
by the trial Court based on the said map can be sustained in the law as
the map did not appear to be accurate. Moreover, neither the City
Surveyor nor any expert had been appointed for the purpose of local
investigation under Order XXVI, Rule 9 of the CPC. Though the
dimension of the property has been mentioned in the sale deed in the
absence of evidence of the person who prepared the map, it is not
possible to accept the said map. Therefore, in the second appeal, the
judgments and decrees passed by the Courts below were set aside and
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the matter was remanded back to the trial Court with a direction to
appoint a Court Commissioner or Surveyor from the Office of the City
Survey to carry out the measurement.
(18) In the case of Haryana Waqf Board (supra) before the
trial Court, an application for the appointment of a Court Commissioner
for the demarcation of the disputed land was filed. The same was
rejected, which was challenged up to the Supreme Court, wherein the
Hon'ble Apex Court held that the first appellate Court and High Court
ought to have considered whether, in view of the nature of the dispute
and the facts of the case, whether the Local Commissioner should be
appointed for the purpose of demarcation in respect of the suit land
and therefore, set aside the judgment and decree passed in the second
appeal. The second appeal was restored to its original file.
(19) Notably, in the case at hand, the petitioners have not
moved the application before the learned trial Court to appoint the
Court Commissioner under Order XXVI Rule 9 of the CPC to measure
the disputed lands, but the same was filed before the first appellate
Court during the pendency of the appeal. This shows that the
petitioners failed to avail the said remedy at the first instance before
the trial Court, but after concluding the trial and failing to prove their
case, they moved this application before the appellate Court. So also,
it is not the case of the petitioners that they are claiming that the order
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of the trial Court be set aside and the matter be remanded back to the
learned trial Court for fresh consideration, as held in the case of Jamir
Khan (supra). Thus, it reveals that facts in the afore-cited judgments
and the case at hand are different, and therefore, the mandate laid
down in the said judgments is not helpful to the petitioners in support
of their case. In such circumstances, in my opinion, the law laid down
in the afore-cited judgments is not helpful to the petitioners.
(20) On the contrary, it appears that the order passed by the
learned appellate Court is well-reasoned. The petitioners failed to point
out illegality and perversity in the said order. Hence, I do not find
substance in the contention of the learned Counsel for the petitioners in
that regard.
(21) In the above discussion and background, the petition
seems bereft of merit. Hence, it stands dismissed. No order as to
costs.
(22) As a sequel to the above, interim orders, if any, stand
vacated.
(23) Inform the learned Trial Court accordingly.
[ ABHAY J. MANTRI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 10 OF 10
Designation: PA To Honourable Judge
Date: 04/01/2025 13:41:26
