Khanderao Keshav Dhande v. Sunanda Gopal Bhirud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD SECOND APPEAL NO.290 OF 2013 WITH CIVIL APPLICATION NO.1277 OF 2013 IN SA/290/2013 Khanderao S/O Keshav Dhande , Age 75 years, Occup.Agriculture, R/o Nimbhora Tq. Raver Dist.
Jalgaon.
....Appellant (Original defendant)
VERSUS
Sunanda w/o Gopan Bhirud, Age Major, Occup. Agriculture, R/o Nimbhora Tq. Raver Dist.
Jalgaon.
....Respondent (Original plaintiff) ...
Advocate for Appellant : Mr. L. V. Sangeet h/f M.L.Sangeet Advocate for Respondent : Mr. S. P. Shah ...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 05-10-2021 ORAL ORDER :
1.
The present appeal has been filed by the original defendant challenging the concurrent findings. Respondent/original plaintiff had filed Regular Civil Suit No.25 of 1994 before Joint Civil Judge, Junior Division, Raver for possession and mesne profits. It was the contention of the original plaintiff that the defendants have encroached to the extent of 6 R land. The appellant/defendant denied it and it was his contention that plaintiff in collusion with measurement officer has
shown the encroachment. The notice of measurement was not served upon him and measurement has done behind his back and prior to the filing of the suit. It was the contention of the appellant/ defendant that the boundaries are intact and that much portion is in his possession.
2.
Parties have led evidence, especially the plaintiff, who had got the land measured prior to the suit, examined Cadestral Surveyor Suresh Onkar Mali. The learned Trial Judge believed the evidence adduced by the plaintiff and it has been held that the plaintiff has proved the encroachment at the hands of defendant. The suit came to be partly decreed on 17-09-2004.
3.
Defendant filed Regular Civil Appeal No.277 of 2004, it was dismissed by learned Principal District Judge-5 and Assistant Sessions Judge, Jalgaon, on 15-03-2011. Hence, present second appeal.
4.
Heard leaned Advocate Mr. L. V. Snageet holding for learned Advocate Mr. M. L. Sangeet for appellant and learned Advocate Mr. S. P. Shah for respondent.
5.
Learned Advocate Mr. L. V. Sangeet for the appellant
submitted that both the Courts below have wrongly discarded the evidence of appellant/original defendant. Substantial questions of law are arising in this case.
Per contra, learned Advocate Mr. S. P.
Shah appearing for respondent supported the reasons given by both the Courts below.
6.
At the outset, it appears that both the Courts below have not adhered to the decisions of this Court when in any suit there is a question of encroachment. It is to be noted that the plaintiff had got his land measured on 16-12-1993, he filed the suit in the year 1994. Therefore, when the defendant in his written statement had contended that the measurement was got done behind his back and no notice was served on him, there ought to have been an endeavour basically by the Trial Court first and in case of failure of the Trial Court, by the First Appellate Court, to get an admitted map. The learned First Appellate Court has considered that the notice was issued to defendant by UPC on correct address, hence it ought to have been received by him. Learned First Appellate Court may be justified in drawing such inference but when defendant has denied it on oath then there ought to have been endeavour to get an admitted map on record. Learned First Appellate Court failed to
consider that defendant's land was not measured at all by Cadastral Surveyor. Both the Courts below as it appears failed to exercise their power under Order 26 of the Code of Civil Procedure to appoint Court Commissioner by giving opportunity to both sides i.e. asking the plaintiff to deposit the cost of remeasurement and by giving notice in advance to the defendants to remain present at the time of measurement. Further, when the measurement in respect of only plaintiff's land has been done and the land of defendant has not been measured, that is also one of the point that could have been got cured when the measurement could have been got done of both the lands by appointing a Court Commissioner. In a catena of Judgments, especially in Ushabai w/o Sharadchandra Bannore v. Wasudeo Baliramji Mehare and others, reported in 2004 (2) Mh.L.J.
594 (Bench At Nagpur), it has been held that, "The maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a map is accurate lies on the party who produces it. The maps must be proved by the person who has prepared them. In case of dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same.
such a map, the decree is probably meaningless and execution means virtually starting the case overall again."
Though the suit was filed in the year 1994, it was decided in the year 2004. Therefore, the learned Trial Court ought to have considered this Judgment and ought to have appointed Taluka Inspector of Land Record as Court Commissioner once again by giving due notice to the defendant and an admitted map ought to have been got produced on record. The First Appellate Court was not powerless to direct a joint measurement and to have that measurement on record which can be said to be an admitted map after the measurement. This Court would rely on the observations of the earlier Judgment of this Court in Sulemankhan s/o Mumtajkhan and Others Versus Smt. Bhagirathibai wd/o.
Digamber Asalmol and Another, reported in 2014 (5) ALL MR 552, are reproduced here, "This Court has time and again expressed opinion about the necessity of duly drawn measurement plan/ map in any suit in which there is a boundary dispute.
office of TILR or DILR, as the case may be, so that measurement of suit property is carried out in presence of the parties after due notice to them or even if they are absent, so as to ensure that the suit property is properly measured, boundaries are fixed and boundary dispute is finally settled by producing map in the Court by the plan maker who can prove its genuineness by deposing in support of such plan/ map, if it is so necessary in the absence of admission for exhibiting the map."
7.
If we consider the testimony of the Cadestral Surveyor then it can be seen that PW.1 Suresh Mali had measured disputed land only but he has not measured the land of defendant. When all these shortcomings were noticed, especially by the Trial Court, the Trial Court ought to have appointed a Court Commissioner. Since the suit was for recovery of possession and mesne profit then only the expert is expected to be the Court Commissioner. There ought to have been a joint measurement before concluding whether there is encroachment or not. As aforesaid, even the First Appellate Court failed to exercise its powers, however, since this Court cannot shut its eyes, the matter deserves to be remanded to the Trial Court for getting the lands measured once again. Hence, the second appeal stands partly allowed.
ORDER
1) The second appeal is hereby partly allowed.
2) The Judgment and decree passed by learned Jt. Civil Judge Junior Division, Raver in RCS No.25 of 1994 dated 1709-2004 and Judgment and decree passed by learned District Judge-5, Jalgaon in RCA No.277 of 2004 dated 15-03-2011, are hereby set aside.
3) The Regular Civil Suit No.25 of 1994 is restored to the file of Jt. Civil Judge Junior Division, Raver with following directions :- A) After appearance of the parties before the Trial Court, original defendant to file application for appointment of Court Commissioner under Order XXVI Rule 9 of Code of Civil Procedure, within a period of two(2) weeks from the date of appearance before learned Trial Court for getting the lands measured. B) The Trial Court shall appoint Taluka Inspector of Land Records / (Deputy Superintendent of Land Records) as Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908.
C) After the Court Commissioner is appointed, defendant to deposit the requisite charges with the concerned authority within a period of two (02) weeks thereafter.
D) The Court Commissioner shall prepare
measurement map showing the boundaries of the land and with conclusion as to whether there is any encroachment or not and submit report before the Trial Court within a period of four months, after the order/ writ is given to the Commissioner.
4) Failure on the part of the defendant to file such application for appointment of Court Commissioner, should be taken adversely, against him.
5) The Trial Court to decide the suit afresh by giving opportunity to both the parties to lead evidence, if necessary and so advised.
6) Since the suit of 1994 is being restored today to the File of learned Joint Civil Judge Junior Division, Raver, the Trial Court should give priority to dispose of the suit and to decide the same within a period of ONE YEAR from the receipt of the writ or placing of authentic copy of the order of this Court before it, whichever is earlier.
7) Both the parties to appear before the learned Trial Court on 12-11-2021.
8) No order as to costs.
9) The second Appeal stands disposed of. Pending civil application stands disposed of.
(SMT. VIBHA KANKANWADI) JUDGE vjg/-.