Bombay High Court

Dnyaneshwar Shivaji Bodke vs Mangaldas Govinda Bodke And Ors on 26 March, 2025

Author: N. J. Jamadar

Bench: N. J. Jamadar

  2025:BHC-AS:15147
                                                                         26-WP11490-2023.DOC

                                                                                           Santosh

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION


                                          WRIT PETITION NO. 11490 OF 2023

                      Dnyaneshwar Shivaji Bodke                               ...Petitioner
                                        Versus
                      1. Mangaldas Govinda Bodke
                      2. Dalpat Tryambak Bodke
                      3. Shridhar Punjaram Bodke
                      4. Kacharabai Balu Bodke
                      5. Balu Mahadu Bodke
SANTOSH               6. Barku Mahadu Bodke
SUBHASH
KULKARNI              7. Devidas Motiram Wagh
Digitally signed by
SANTOSH SUBHASH
                      8. Mohanlal Motiram Wagh
KULKARNI
Date: 2025.04.02
18:16:47 +0530
                      9. Madav Nimbaji Bodke
                      10. Parashram Laxman Bodke                         ...Respondents

                      Mr. Jayendra Khairnar, for the Petitioner.
                      Mr. Mahendra Sandhyanshiv, for the Respondents.

                                                       CORAM: N. J. JAMADAR, J.
                                                       DATED: 26th MARCH, 2025

                      JUDGMENT:

1. Rule. Rule made returnable forthwith and with the

consent of the learned Counsel for the parties, heard finally.

2. The background facts leading to this petition can be stated

in brief as under:

2.1 The petitioner - original plaintiff assails the legality,

propriety and correctness of an order dated 12 th August, 2022

passed by the learned Civil Judge, Malegaon, whereby an

application (Exhibit-5) preferred by the plaintiff to appoint a

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Commissioner to measure the suit properties came to be

rejected and another order dated 6th May, 2023, whereby an

application (Exhibit-57) preferred to review the first order also

came to be rejected.

2.2 The plaintiff claims to be the holder of suit lands bearing

Gat Nos.96/1 and 96/2 ("suit properties I and II"). Defendant

Nos.1 to 11 are the holders of the suit lands (properties

described at Sr. Nos.III to X).

2.3 Tryambak Bodke was the original holder of the suit

properties. Trymbak had five sons namely Govind, Laxman,

Kashinath, Shivaji, the father of the plaintiff, and Dalpat. There

was a partition of the joint family properties amongst the sons

of Tryambak. In the said partition, land bearing Gat No.134

admeasuring 62 Are and Gat No.96/1 admeasuring 72 Are was

allotted to Kashinath Tryambak Bodke.

2.4 The plaintiff claimed to have purchased the land bearing

Gat No.96/1 admeasuring 72 Are from Kashinath Bodke, under

a registered Sale Deed dated 22nd June, 1987. The plaintiff and

his father had been in possession and cultivation of the suit

lands. There was a dispute inter se plaintiff and his father.

Taking undue advantage of the said dispute, the defendants, the

plaintiff alleges, committed encroachment over the suit land

26-WP11490-2023.DOC

bearing Gat No.96/1 and 96/2. The plaintiff had a private

measurement. It transpired that defendant No.1 to 11 had

committed encroachment to the extent of 32 Are land, over the

suit lands. Hence, the suit for removal of encroachment and

delivery of possession of the encroached land.

2.5 In the said suit, the plaintiff filed an application for

appointment of the City Survey Officer, Malegaon, to measure

the suit lands bearing Gat Nos.96/1 and 96/2 and all the sub-

divisions of Gat No.96.

2.6 The defendants resisted the application. The defendants

contended that Kashinath Bodke, predecessor-in-title of the

plaintiff, was allotted only 40 Are land. The plaintiff was not the

holder of 32 Are land, as claimed. Since defendant No.2 had

instituted a suit against the plaintiff being RCS No.249/2019 in

the Civil Court at Malegaon to restrain the plaintiff from causing

obstruction to the possession and enjoyment of the defendants

over the said 32 Are land, the instant suit was instituted by the

plaintiff to exsert pressure on the defendants.

2.7 By the impugned order, the learned Civil Judge was

persuaded to reject the application on the premise that the

rough map, relied upon by the plaintiff, indicated that the

encroached portion was 67 Are and it appeared that the plaintiff

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was seeking removal of encroachment over the land which did

not belong to the plaintiff. It was further observed that the

measurement of the agricultural land was required to be carried

out by a Cadestal Surveyor and the plaintiff had prayed for

appointment of a City Survey Officer. Thus, the application

came to be rejected.

2.8 The application for review (Exhibit-57) also met the same

fate.

3. Being aggrieved, the plaintiff has invoked the writ

jurisdiction.

4. Mr. Khairnar, the learned Counsel for the petitioner,

submitted that the learned Civil Judge committed a manifest

error in rejecting the application for appointment of the Court

Commissioner when the suit has been instituted for removal of

encroachment and recovery of possession of the encroached

portion of the suit property. The learned Civil Judge did not

appreciate the fact that in case of a boundary dispute or

allegations of encroachment, the issue cannot be adjudicated

without measurement of the lands by a Surveyor. By ascribing

unsustainable reasons the learned Civil Judge rejected the

application, urged Mr. Khairnar.

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5. In opposition to this, Mr. Sandhyanshiv, the learned

Counsel for the respondents, would urge that the learned Civil

Judge was justified in rejecting the application for appointment

of the Court Commissioner as the plaintiff was asserting

ownership over the property which ex facie did not belong to the

plaintiff. Attention of the Court was invited to the contentions

in the written statement of the defendants, especially as regards

the manner in which the joint family properties were re-

partitioned among the sons of Tryambak Bodke. Emphasis was

laid on the facts that only 40 Are land out of Gat No.96/1, was

allotted to Kashinath Tryambak Bodke and the predecessor-in-

title of the plaintiff's and 32 Are land was kept in common

enjoyment. Thus, the endeavour of the petitioner was to collect

evidence regarding the proprietary claim of title over the said

32 Are land. From this standpoint, according to Mr.

Sandhyanshiv, the learned Judge was justified in rejecting the

application for appointment of the Court Commissioner.

6. To begin with, the nature of the suit. The substance of the

claim of the plaintiff is that he had acquired Gat No.96/1

admeasuring 72 Are from Kashinath Bodke to whom the said

land was allotted under the partition of the joint family

properties. Defendant Nos.1 to 11 have committed encroachment

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over the said land from all sides as the plaintiff was not residing

at village Jeur, Malegaon. The plaintiff had requested the

defendants to have a joint measurement. But they declined to

have measurement of all the sub-divisions of Gat No.96. A

private measurement, carried out by the plaintiff of his land,

revealed encroachment by the defendants. Plainly, the suit is

for removal of encroachment and delivery of possession of the

alleged encroached portion of the suit properties I and II.

7. The learned Civil Judge proceeded on the premise that the

plaintiff could not bring prima facie material to show

proprietary title over 72 Are land out of Gat No.96/1 and,

therefore, the appointment of the court Commissioner to

measure the suit land was not necessary.

8. From the perusal of the material on record, it appears that

land bearing Gat No.96/1 admeasuring 72 Are is mutated in the

name of the plaintiff in the record of rights. It also appears that

the name of Kashinath Bodke, the predecessor-in-tile of the

plaintiff was mutated to Gat No.96/1 admeasuring 72 Are. The

same area and description of the property finds mention in the

Sale Deed dated 26th June, 1987 under which the plaintiff

purchased Gat No.96/1 from Kashinath Bodke.

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9. In the face of aforesaid material which prima facie

indicates that Gat No.96/1 admeasuring 72 Are stood in the

name of Kashinath Bodke and, post acquisition, in the name of

the plaintiff, the learned Civil Judge could not have negatived

the claim of the plaintiff terming it to be actuated by a design to

exert pressure on the defendants.

10. Once there is prima facie material to show that the land

bearing Gat No.96/1 admeasured 72 Are and the plaintiff is

holder thereof, and plaintiff alleges encroachment over 32 Are

land out of Gat No.96/1, the trial court ought to have posed

unto itself the question as to whether the appointment of the

Court Commissioner would elucidate the matter in controversy

and assist the Court in arriving at a just decision of the case.

11. It is well neigh settled that when there is a dispute over

the boundaries of the lands or the suit is for removal of

encroachment, the identity of the land, sites thereof and

encroachment, if any, can only be determined by having a

measurement by a surveyor.

12. A useful reference, in this context, can be made to the

judgment of the Supreme Court in the case of Shreepat Vs.

Rajendra Prasad and ors.1, wherein it was enunciated that when

1 2000(6) Supreme 389.

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there was a serious dispute with regard to the area and

boundaries of the land in question, especially with regard to its

identity, the courts below, before decreeing the suit should have

got the identity established by issuing a survey commission to

locate the plot in dispute and find out whether it formed part of

Khasra No.257/3 of Khasra No.257/1.

13. In the case of Haryana Waqf Board vs. Shanti Sarup2 the

Supreme Court has emphasised that in the case of demarcation

of the disputed land it is appropriate for the Court to direct the

investigation by appointing a local commissioner as provided

under Order XXVI Rule 9 of the Code of Civil Procedure.

14. In the case of Kolhapuri Bandu Lakade vs. Yallappa

Chinappa Lakade (dead) through Pooja @ Poojari Y. Lakade 3, a

learned Single Judge of this Court after placing reliance on the

judgment of the Supreme Court in the case of Haryana Waqf

Board (supra) culled out the legal position in paragraph 14 as

under:

"14. It can thus clearly be seen that the Apex Court in the case of Haryana Waqf Board cited supra in enquivocal terms has held that in the case of demarcation of disputed lands, it is appropriate for the Court to direct the investigation by appointing a Local Commissioner as provided under Order XXVI, Rule 9 of the Code of Civil Procedure. The other learned Judges of this Court, namely, M. S. Vaidya, J., S. T. Kharche, J., A. P. Bhangale, J., F. M. Reis, J., have also held

2 (2008) 8 SCC 671.

3 (2011) 3 Mah LJ 348.

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that in case of dispute of encroachment of a site, an appointment of Court Commissioner who could be City Survey Officer or Cadestal Surveyor for taking joint measurement of the property owned by the plaintiff and defendant for the purpose of local investigation under Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just decision of the case. It has also been held by this Court that merely because a Court Commissioner is appointed, it will not prejudice the interest of either of the parties. It has been held that if any of the parties aggrieved by the report of the Court Commissioner, an opportunity would be available to that party to cross- examine the Court Commissioner and to point out as to how his conclusions were not correct. It has further been observed that the party who was not aggrieved would also prove how his conclusions are correct."

(emphasis in origin)

15. The aforesaid being the position in law, in the facts of the

case at hand, the learned Civil Judge committed an error in law

in refusing to exercise the jurisdiction vested in him to appoint a

Cadestal surveyor to measure the suit properties I and II and all

the sub-divisions of Gat No.96, to elucidate the matter in

controversy. In the absence of such a joint measurement, the

Court would not be in a position to determine the issue of

encroachment, if any. Resultantly, the impugned orders deserve

to be quashed and set aside and the application for the

appointment of the Court Commissioner deserves to be allowed.

16. Hence, the following order:

:ORDER:

(i)     The petition stands allowed.

(ii)    The impugned orders stand quashed and set aside.






                                                     26-WP11490-2023.DOC