Bombay High Court
Avinash S/O Govindrao Gadge And Other vs Sant Sakhumata Deosthan, Nara Thr. ... on 30 July, 2025
2025:BHC-NAG:7481
1 ao4.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
APPEAL FROM ORDER NO.4/2023
1. Avinash S/o Govindrao Gadge,
age 68, Occu. Cultivator.
2. Rajendra S/o Govindrao Gadge,
age 63, Occu. Cultivator.
Both R/o Nara, Taluka Karanja,
Distt. Wardha. ... Appellants
(Original Plaintiffs)
- Versus -
1. Shri Sant Sakhumata Deosthan,
a registered Trust No.583(A) Wardha,
Nara, Tq. Karanja, Distt. Wardha,
through Secretary Mr. Sunil Wamanrao
Supal and President Mr. Tikaram
Gulabrao Ghagare,
age 61, Occu. Agriculturist,
R/o Nara, Taluka Karanja,
Distt. Wardha. (Ori. Deft. No.1)
2. The Tahsildar Karanja (Gh.),
Karanja (Gh.), Taluka Karanja (Gh.),
Distt. Wardha. (Ori. Deft. No.2)
3. The Collector, Wardha,
Wardha, Taluka Wardha,
Distt. Wardha. (Ori. Deft. No.3)
... Respondents.
2 ao4.2023
-----------------
Mr. Prasad Dharaskar, Advocate for the appellants.
Mr. Deepak G. Paunikar, Advocate for respondent No.1.
----------------
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE JUDGMENT: 10.07.2025.
DATE OF PRONOUNCING THE JUDGMENT: 30.07.2025.
JUDGMENT
Being aggrieved by the judgment and decree dated
28.7.2022 passed in Regular Civil Appeal No.11/2017 of District
Judge-3, Wardha thereby partly allowing the appeal and
remanding back the suit before trial Court for decision afresh
against the judgment and decree dated 13.12.2016 passed by the
2nd Joint Civil Judge, Senior Division, Wardha in R.C.S.
No.9/2009, the appellants have filed this appeal.
2. The facts, in brief, are as under:-
The appellants - original plaintiffs have filed suit for
permanent and mandatory injunction against the respondents i.e
original defendants. The plaintiffs are real brothers and owners of
Field Survey No.437-A/1 and 437-A/2 of Nara, Taluka Karanja,
3 ao4.2023
Ghadge, Distt. Wardha. Respondent No.1 - the original
defendant No.1-Trust is a owner of the field adjacent to nala
bearing Survey No.451/1. The nala flows in between the field of
appellants and field property of respondent No.1 i.e. defendant
No.1. The original defendant Nos.2 and 3 are the owners of said
nala i.e. Government. According to the appellants it is the
responsibility of defendant Nos.2 and 3 to take due care and
maintenance of nala thereby not to cause any damage to the
adjacent property.
3. It is the grievance of the appellants that the defendant
No.1 without any right and title had started construction of well
in January 2006 and dumped the debris in nala. Thereafter, in
2008 defendant No.1 had dug inside the nala from the well
towards eastern direction to 100 feet without taking any
permission from the competent authority and again dumped all
the debris in the suit property i.e. nala. According to the
plaintiffs, the defendant No.1 had encroached upon 4 meters of
width of nala out of 8 meters by constructing the compound wall
4 ao4.2023
and pits were constructed on the suit property. Because of the
said action of the defendant No.1 the natural course of the flow of
nala was disturbed and the rain water directly went into the field
of appellants causing irreparable damage to the fields and crops
standing therein. Therefore, Civil Suit No.9/2009 was filed by
the appellants to remove the construction from the suit property.
The decree in said civil suit was passed in favour of the plaintiffs
and direction was given to respondent Nos.1 to 3 to remove the
construction from the suit property.
4. The said judgement was challenged by the defendant
No.1 in Appeal No.11/2017. The said appeal was partly allowed
by the District Court and remanded the matter back to the trial
Court for decision afresh directing the trial Court to appoint
qualified Surveyor as a Commissioner from the office of District
Inspector Land Records to measure the land of plaintiffs and
defendant No.1 including nala and other adjacent property for
ascertaining the fact of encroachment, if any, on the nala portion
reducing its width causing obstruction to the natural flow of the
5 ao4.2023
nala under the provisions of Order 41 Rule 23-A of the Code of
Civil Procedure. Being aggrieved by the said order in appeal, the
appellants have filed this appeal against the order before this
Court.
5. The learned Advocate for the appellants has stated
that the appellate Court has erred in passing the order as there is
no dispute between the appellants and the defendant No.1 about
the measurement of their fields. The measurement of nala is
already admitted by the defendant No.1 in its written statement
and admitted fact is not required to be considered again. There is
no question of measurement of said nala. The Civil Judge Senior
Division has rightly considered the oral and documentary
evidence on record and rightly passed the judgment to remove the
construction of nala and restrained the defendants to put the
debris in nala. Hence prayed to allow the appeal by setting aside
the order passed by the appellate Court.
6 ao4.2023
6. It is submitted by the learned Advocate for the
respondent No.1 - original defendant No.1 that the impugned
order passed by the appellate Court needs no interference at the
hands of this Court as the same is rightly passed. He has prayed
to dismiss the instant appeal against order.
7. Heard both sides and perused the record.
8. The plaintiffs - appellants have stated that it is not the
case of boundary dispute for encroachment in property of
plaintiffs and defendants and, therefore, for Commissioner's
report, remand of suit is not required. The suit property i.e. nala
belongs to Government and, therefore, available evidence which
includes photographs relied upon by the defendant No.1 is
sufficient to prove the fact of obstruction and construction. The
map is brought on record to prove the encroachment and
measurements of the properties to properly establish the accuracy
of the map. It is observed by the appellate Court that the order of
Sub-Divisional Officer is brought on record about consolidation
7 ao4.2023
and correction and change in area of property of defendant No.1.
In such circumstances, in the maps which are prepared by
Surveyor, the possibility of discrepancy about actual area, its
measurement in previous and present width of nala varies which
be there which cannot be adjudicated upon without leading
evidence. This Court in case of Vachhalabai W/o Kundlilk
Gavane and others V/s. Chinkaji S/o Malhari Jadhav and others
reported in 2012(3) ALL MR 91 observed that under Order 26
Rules 9 and 10 appointment of Court Commissioner for joint
measurement of land of plaintiff and defendant is necessary for
deciding the dispute as to encroachment upon land of plaintiff
where two reports from T.I.L.R. Office, one indicating
encroachment by defendant and another indicating no
encroachment are there, and disposal of appeal without such
appointment of Commissioner is unsustainable.
9. It is, therefore, necessary for proper conclusion about
the encroachment on nala which is adjacent to the properties of
8 ao4.2023
both plaintiffs and defendant No.1 that Court Commissioner be
appointed to measure the disputed properties properly. The
existing area of nala shown in map, its consolidation and
thereafter position of well whether it is constructed on the portion
of nala or not, all these facts require the evidence. The available
evidence is not sufficient and, therefore, the appointment of
Commissioner is necessary. Whether the construction made by
the defendant No.1 is on the portion of nala cannot be ascertained
without verifying the actual area or measurement of construction
of well made by the defendant No.1 and, therefore, the appellate
Court has rightly remanded back the appeal to the trial Court to
consider the evidence whether there is any encroachment on nala
and as there is correction after consolidation report of the
Commissioner is necessary. Hence, the appellate Court has
rightly remanded back the civil suit for consideration of limited
purpose i.e. for leading evidence in this regard and appointment
of Commissioner to come to the conclusion whether there is any
encroachment on the nala and whether it requires to be removed.
9 ao4.2023
As the interference at the hands of this Court is not required, the
appeal stands dismissed. No costs.
(MRS.VRUSHALI V. JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 01/08/2025 18:51:45
