Bombay High Court
Arjunbhai Devsibhai Patel Thr. Poa ... vs Kedu Karbhari Jevughale on 20 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:14010
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4187 OF 2022
Arjunbhai Devsibhai Patel
(Through Power of Attorney
Ashok Arjunbhai Patil) ...Petitioner
vs.
Kedu Karbhari Jevughale ...Respondent
Mr. Sanjay Shinde, for the Petitioner.
Mr. Sanjiv Sawant a/w. Mr. B.K. Barve, Mr. Sandeep Barve, Mr.
Simmy Sebastian, for the Respondent.
CORAM : N. J. JAMADAR, J.
DATE : MARCH 20, 2025
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith and, with the consent of
the learned Counsel for the parties, heard finally.
2. The challenge in this petition is to an order dated 17 th
VISHAL
SUBHASH February, 2022 passed by the learned Civil Judge, Niphad on an
PAREKAR
Application (Exh. 152) to delete the issue and frame an additional
issue.
3. By the impugned order, the learned Judge has framed the
following additional issue:
1} Whether the plaintiff is estopped to ask for
measurement on the basis of sale deed in the light of
M.R.N. 104/ 2006 ?
4. At the outset, it is necessary to note that the parties are
Vishal Parekar, PS ...1
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litigating since the year 2006. The petitioner instituted a suit for
recovery of possession of the premises alleging that the defendant
has committed encroachment over the suit property described in
paragraphs 1A and 1B of the plaint. It was alleged that on 3 rd May,
2008, the defendant unauthorizedly barged into the suit property
and committed encroachment over a portion of the suit property 1A
and 1B. By a judgment and order dated 24 th April, 2015 the suit was
dismissed by the learned Civil Judge.
5. The petitioner preferred an appeal before the District Court.
By a judgment and order dated 8 th March, 2016 in R.C.A. No. 64 of
2015, the appeal was partly allowed and R.C.S. No. 153 of 2012 was
partly decreed.
6. Being aggrieved, the defendant preferred Second Appeal No.
561 of 2016. In the second appeal, this Court was persuaded to
remand the matter back to the trial Court noting that the trial
Court as well as the first appellate Court committed an error in
determining the issue of encroachment without having an
appropriate measurement of the disputed land. Thus, this Court
directed the trial Court to appoint a Cadastral Surveyor to measure
the disputed land with specific direction to the Surveyor to fix the
boundaries and determine the encroachment on the plaintiff's land
after giving notice to all the adjacent land owners. It was also
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directed that, after Cadastral Surveyor submitted his report, the
parties be permitted to lead evidence in the matter and, thereafter,
the trial Court shall decide the suit afresh.
7. After remand, the Cadastral Surveyor came to be appointed.
The Cadastral Surveyor submitted his report of measurement. The
Cadastral Surveyor was also examined as a witness for the plaintiff.
The plaintiff has adduced his evidence. A witness Kedu Karbhari
Jevughale was examined on behalf of the defendant. Thereafter, on
20th September, 2021 the defendant closed his evidence.
8. As the stage of final argument in the suit, the respondent-
defendant preferred an application (Exh. 162) seeking settlement
of an additional issue. It was contended that in terms of the
settlement arrived at between the parties, the land was measured
vide M.R.N. 104/2006 and, therefore, the plaintiff was not entitled
to seek the measurement of the land in accordance with its
description in the Sale Deed.
9. By the impugned order, the learned Civil Judge was
persuaded to partly allow the application. The prayer to delete the
additional issue which was already settled was rejected aand the
prayer to frame additional issue, extracted above, was allowed.
10. Being aggrieved, the plaintiff has invoked the writ
jurisdiction.
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11. I have heard Mr. Sanjay Shinde, the learned counsel for the
petitioner, and Mr. Sanjiv Sawant, the learned counsel for the
respondent, at some length.
12. As noted above, the suit has been instituted with a specific
case that the defendant committed encroachment over the suit
property and for removal of the encroachment and delivery of the
possession of the alleged encroached portion of the suit property.
The trial Court had dismissed the suit on the premise that the
plaintiffs failed to prove the encroachment. The first appellate Court
reversed the order of the trial Court. In the Second Appeal, this
Court found that the Courts below had not approached the real
controversy from a correct perspective. This Court considered it
appropriate to remand the matter back to the trial Court with a
direction to appoint a Cadastral Surveyor to measure the suit
properties and fix the boundaries and indicate encroachment, if
any, over the suit property. The said exercise was concluded and
the parties have also led evidence.
13. Thus, the core controversy revolves around the question as to
whether the defendant has committed an encroachment over a
portion of the suit property. In the backdrop of this controversy,
this Court finds that the issues were initially settled by the Court on
8th September, 2011. Post remand, an additional issue was framed to
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the effect, "Does the plaintiff prove that the defendant has
encroached upon the land of the plaintiff ? If yes, to what extent ?"
These issues, especially the additional issue, cover the entire
controversy between the parties.
14. In this view of the matter, the legality and propriety of
framing an additional issue as to whether the plaintiff is estopped
from seeking measurement on the basis of the Sale Deed in the light
of M.R.N. 104/2006, deserves to be appreciated.
15. I have perused the written statement. The only contention in
the written statement which is relevant for the determination of the
controversy at hand is that, the plaintiff had given assent for the
sub-division of Gat No. 625, in M.R.N. 104/2006, and, therefore,
there was no question of re-measurement of Gat No. 625. This Court
finds it difficult to appreciate that on the basis of such a contention
in the written statement the issue of estoppel against seeking
measurement of the suit land, when it is the allegation of the
plaintiff that defendant committed encroachment over the suit
land, in the year 2008, could have been framed.
16. The pleadings in the written statement do not give any
indication as to by which material, i.e., pleading, judgment or
conduct, the plaintiff is estopped from seeking the measurement of
the suit land. On the contrary, from the perusal of the averments in
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the plaint, especially paragraph 8, it becomes evident that the
plaintiff has made a categorical assertion that on 3 rd May, 2008, the
defendant committed encroachment over the suit land. A bald
assertion in the application that an additional issue was required to
be framed as to the entitlement of the plaintiff to seek measurement
of the suit land, could not have been the basis to frame such an
additional issue, especially when the matter was remanded by this
Court with specific directions. Neither on the basis of the pleadings
of the parties nor on account of the subsequent developments, post
remand by this Court, the additional issue arises for determination.
17. As regards the withdrawal of RCS No. 83 of 2007, in the
context of which contentions have been raised in paragraph 8 of the
written statement, this Court finds that already an issue, i.e., "Issue
No. 4, whether the plaintiff is estopped from filing the suit on
account of withdrawal of RCS No. 83 of 2007", has been framed.
18. Since the parties have already led evidence, in the context of
the report of the Cadastral Surveyor, at this stage, framing of an
additional issue is wholly unwarranted and has the propensity to
de-rail the disposal of the suit. Therefore, the impugned order
deserves to be quashed and set aside.
Hence, the following order.
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ORDER
1] The petition stands allowed.
2] The impugned order dated 17th February, 2022
framing additional issue (extracted in para 2)
stands quashed and set aside.
3] Additional issue framed on 17th February,
2022, stands deleted.
4] The learned Civil Judge is requested to hear
and decide the suit as expeditiously as possible.
5] Rule made absolute to the aforesaid extent.
6] No costs.
(N. J. JAMADAR, J.)
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