Bombay High Court
Sapna Santoshkumar Agrawal vs Shriniwas Ravindra Wajpeyee on 24 March, 2025
2025:BHC-NAG:3246
J SA-17-2023.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.17 OF 2023
APPELLANT : Sapna Santoshkumar Agrawal,
Ori. Plaintiff on R.A.
aged 33 years, Occ. Household, R/o Kamal
Grih Nirman Society, New Radhakisan
Plots, Akola, Tq. and Dist. Akola.
..VERSUS..
RESPONDENT : Shriniwas Ravindra Wajpeyee,
Ori. Defendant on R.A.
Aged 51 years, Occ: Business, R/o
Gorakshan Road, Akola, Tq and Dist.
Akola.
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Mr R. G. Kavimandan, Advocate for Appellant.
Mr O. Y. Kashid, Advocate for Respondent.
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CORAM : M. W. CHANDWANI, J.
DATED : 24th MARCH, 2025.
ORAL JUDGMENT
1. Having heard both the parties, this Court finds that the
substantial questions of law framed vide order dated 22.01.2025 needs to
be reformulated. Rather, only one substantial question of law arises in
this appeal, which is reproduced as under :
"Whether the learned First Appellate Court was right in
non-suiting the appellant on the ground that no notice was given
to the respondent for the measurement, in wake of the fact that the
appellant's application for joint measurement of the plots owned
by the respective parties was rejected by the learned Trial Court ?"
J SA-17-2023.odt
2. Since the substantial questions of law which were framed
earlier are reformulated and ultimately the gist of the substantial question
of law formulated today is encroachment; therefore, both the parties have
no objection to hear the appeal today itself.
3. Heard Mr Kavimandan, learned counsel for the appellant and
Mr Kashid, learned counsel for the respondent.
4. This appeal takes an exception to the judgment and decree
dated 20.10.2022 passed in Regular Civil Appeal No.140 of 2016 by the
learned Principal District Judge, Akola, whereby the findings of the 6 th
Joint Civil Judge (J. D.), Akola, in Regular Civil Suit No.376 of 2009
have been overturned.
5. Considering the nature of the question, it is not necessary to
go into the matrix of the case in detail, suffice to say that the appellant has
come up with a case of encroachment by the respondent alongwith
measurement report of the Cadastral Surveyor. The Trial Court decreed
the suit. However, the First Appellate Court non-suited the appellant on
the ground that in the said measurement, the respondent was not served
with the notice of measurement. Therefore, the First Appellate Court
disbelieved the measurement report of the Cadastral Surveyor and
allowed the regular civil appeal of the respondent. Hence, this appeal.
J SA-17-2023.odt
6. Heard the learned counsel for the appellant as well as the
learned counsel for the respondent. Having gone through the judgments
impugned, it transpires that pending the trial, the appellant moved an
application for joint measurement by appointing the Court
Commissioner. The said application was rejected by the Trial Court vide
its order dated 05.11.2014. The order was carried in Writ Petition
No.1420 of 2015, whereby the writ petition was not entertained with an
observation that it is open for the appellant to challenge the order
impugned by filing regular civil appeal if the occasion arises. In spite of
rejection of application for joint measurement, the Trial Court proceed to
decree the suit which was overturned by the First Appellate Court on the
ground of non participation of the respondent in the said measurement,
which the appellant had carried out on her level. The law in this regard
has been well settled by catena of judgments, more particularly in the case
of Vijay Shrawan Shende and Ors. vs. State of Maharashtra and Ors .,
2009 (5) Bom. C. R. 306, wherein the Bombay High Court has held as
under :
"37. In the present case, the procedure, as emerging from
foregoing discussion, has not admittedly been adopted.
38. The Substantial Questions of Law are answered as follows :-
(i) .....
(ii) .....
(iii) .....
(iv) .....
(v) It would not be proper to dismiss the suit
simply because the Court Commissioner has not
adopted a correct procedure of measurement and
the exercise of re-measurement, according to rules,
J SA-17-2023.odt
will have to be got done through Court
Commissioner again and again, if necessary, because
failures of Cadastral Surveyors are not attributable
to parties to the suit."
7. In wake of the law settled by this Court in the case of Vijay
Shrawan Shende (supra), the matters regarding measurement need to be
remanded for trial. Therefore, the judgment and decree dated 20.10.2022
passed in Regular Civil Appeal No.140 of 2016 by the First Appellate
Court as well as the judgment and order dated 28.11.2016 passed in
Regular Civil Suit No.376 of 2009 by the Trial Court are set aside.
Resultantly, the appeal is partly allowed.
8. The matter is remanded back to the learned Trial Court to
decide the issue of encroachment afresh by reconsidering the application
of the appellant for joint measurement of the plots possessed by the
respective parties by appointing Cadastral Surveyor as a Court
Commissioner.
9. Needless to mention that the Trial Court shall not get
influenced by the order of this Court and shall decide the issue of
encroachment afresh.
10. In the above said terms, the appeal is disposed of.
(M. W. CHANDWANI, J.)
Signed by: Mr. Ashish Tambe
Tambe
Designation: PA To Honourable Judge
Date: 29/03/2025 13:07:10
