High Court
Facts
1 30-WP-7892-20.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 7892 OF 2020VIJAYKUMAR CHAGANLAL BEDMUTHAVERSUSTHE DISTRICT COLLECTOR, BEED AND OTHERS...Mr. Anant R. Devakate, Advocate for the PetitionerMs. A.S. Mantri, AGP for Respondents/StateMr. R.H. Wagh, Advocate for Respondent Nos. 4 To 6... CORAM : MANJUSHA DESHPANDE, J.DATE : 03rd MARCH, 2025PER COURT : 1.Petitioner challenges the order dated 01/10/2019,passed by learned Civil Judge, Senior Division, Majalgaon, Dist.Beed, below Exhibit-23 in Regular Civil Suit No.06/2019, therebyrejecting the application filed by petitioner / original plaintiff seekingappointment of Court Commissioner for measurement of the suitland. The suit i.e. R.C.S. No.06/2019 has been filed for recovery ofencroached portion of land from defendant Nos.4 to 6.2.It is the case of petitioner that land Survey No.26/1/2admeasuring 1 H 36 R situated at village Phule Pimpalgaon, Tq.Majalgaon, Dist. Beed, was originally owned by one BabaraoLahanappa Naiknavare. Land to the extent of 5 R was acquired bythe Special Land Acquisition Officer, Jayakwadi Project, Beed, byaward No.LAQ.SR/22/74 passed under Section 11 of the LandAcquisition Act, 1894, on 20/11/1976. After acquisition in the yearSVH 2 30-WP-7892-20.odt1976 under the Maharashtra Prevention of Fragmentation andConsolidation of Holding Act, land Survey No.26/1/2 was convertedinto land Gut No.119. The learned advocate for petitioner relies onthe extracts of consolidation scheme by which land SurveyNo.26/1/2 was converted into Gut No.119. However, by somemistake of the revenue authorities, entire land of admeasuring 1 H36 R was shown to be acquired and was mutated in the name ofJayakwadi Project. Subsequently, the mistake was corrected andnames of legal representatives of deceased Babarao LahanappaNaiknavare were recorded to the extent of remaining landadmeasuring 1 H 31 R and Mutation Entry No.1214 was sanctionedto that effect in the year 2008. Learned advocate for petitionersubmits that land admeasuring 60 R out of 01 H 31 R was sold toRamkrushna Ganpatrao Yadav, Dhondiram Sukhdeo Dhepe andNamdeo Shamrao Mali by registered sale deed dated 28/07/2008 bythe legal representatives of deceased Babarao.3.It is submitted that one Ramraje Shivajirao Solankepurchased land admeasuring 20 R from Dhondiram Sukhdeo Dhepeby sale deed dated 10/02/2011. Since petitioner was in need of landhe purchased land to the extent of 94 R from Gut No.119 fromRamraje Solanke by sale deed dated 02/07/2012 and accordingly hisname came to be entered in the revenue record and Mutation EntryNo.1622 to that effect came to be recorded. Petitioner, therefore,SVH 3 30-WP-7892-20.odtbecome owner of the suit land. It is his contention that land ofrespondent No.4 is situated to the western side of Gut No.119 andland of respondent Nos.5 and 6 is situated towards southern side ofGut No.119. After carrying out private measurement it was foundthat respondent Nos.4 to 6 have encroached in the land ofpetitioner. Therefore, petitioner requested respondent Nos.4 to 6 torestore his possession according to the private measurement,however, respondents refused to accede to his request anddemanded measurement through respondent Nos.2 and 3.Petitioner, therefore, filed suit for recovery of possession ofencroached portion.4.During pendency of R.C.S. No.06/2019 petitioner filedapplication for appointment of court commissioner for measurementof land Gut No.119 from western and southern side of Gut Nos.117and 118 respectively. Application filed by petitioner was opposed byrespondent Nos.4 to 6 contending that entire Gut No.119 has beenacquired by the State of Maharashtra for Jayakwadi Project andaccordingly Mutation Entry No.154 is also sanctioned. Since entireland of Gut No.119 has been acquired, there is no land in existencefrom Gut No.119 and compensation is already disbursed to the wifeof original owner. Therefore, there is no question of land being soldin favour of petitioner vide registered sale deed. In spite of landbeing acquired, the entry to the extent of 1 H 31 R land in GutSVH 4 30-WP-7892-20.odtNo.119 has been sanctioned on 01/01/2008.5.After hearing the respective parties, the Trial Court hasrejected the application of petitioner vide order dated 01/10/2019observing that from the documents placed on record it appears thatland in Gut No.119 is admeasuring 1 H 36 R and that entire land hasbeen acquired for Jayakwadi Project, however, due to mistakecommitted the the Talathi while recording entry in 7/12 extract, saledeed of the suit land has been executed.6.This Court vide order dated 24/04/2024 directed learnedAGP to take instructions from the appropriate authority, whetherentire property in Survey No.26/1/2 is acquired for Jayakwadi Projector some portion of the land is acquired. Accordingly reply affidavithas been filed on behalf of respondent No.1 on 20/08/2024 by theSub Divisional Officer, Majalgaon, wherein it is categorically statedthat the land to the extent of 0.05 R from Gut No.119 has beenacquired by the State Government for construction of MajalgaonProject by following due procedure, and final award was declared on20/11/1976. It is also stated that petitioner has purchased landadmeasuring 94 R from Gut No.119 from its owner Ramraje Solankevide registered sale deed dated 02/07/2012 and accordingly themutation entry has been sanctioned and name of petitioner isreflected in revenue record. In view of the application filed bypetitioner on 26/04/2024, the Talathi has been directed to submitSVH 5 30-WP-7892-20.odtdetailed report in respect of Gut No.119. Accordingly on the basis ofreport submitted by Talathi on 19/07/2024, the Sub DivisionalOfficer, Majalgaon has informed petitioner on 24/07/2024, that noland belonging to him from Gut No.119 has been acquired by theGovernment. On the basis of affidavit filed by respondent No.1,position is made clear that land to the extent of 0.05 R from GutNo.119 has been acquired by the Government.7.Learned advocate for respondent Nos.4 to 6 hasvehemently opposed the petition contending that entire Gut No.119was in fact acquired and nothing was left for being sold in favour ofpetitioner. Even the trial Court has recorded that petitioner haspreviously given an application for conducting measurement andaccordingly report has been submitted along with panchanama,which shows that entire land has been acquired by the Government.Therefore, the impugned order passed by the Trial Court isappropriate and does not deserve any interference.8.After hearing the respective parties, it appears that landsurvey No.26/1/2 admeasuring 1 H 36 R owned by Babarao wasacquired to the extent of 0.05 R by the Government of Maharashtrafor Majalgaon Project. The land Survey No.26/1/2 was subsequentlyconverted into Gut No.119. By mistake the entire land ofadmeasuring 1 H 36 R was shown to be acquired for the project andit was mutated in the name of Jayakwadi Project. That mistake wasSVH
Legal Reasoning
6 30-WP-7892-20.odtcorrected and names of legal representatives of deceased Babaraowere recorded to the extent of remaining land admeasuring 1 H 31R and Mutation Entry No.1214 was sanctioned to that effect in theyear 2008. Learned Civil Judge Senior Division has passed theimpugned order on two assumptions i.e. measurement of suit landhas already taken place, therefore, there is no need to measure thesuit land, and the earlier measurement report discloses that entireland of Gut No.119 has been acquired by the State Government.Acquisition of land to the extent of 0.05 R is supported by the awarddated 20/11/1976. In the reply affidavit it has been categoricallystated that State Government has acquired land from Gut No.119 tothe extent of 0.05 R only. Therefore, contention of petitioner standsfortified by the affidavit filed on behalf of respondent No.1.9.Learned advocate for petitioner relied on the judgmentof this Court in case of Shantaram Dattatray Kekan and OthersVs. Bhausaheb Karbhari Kekan and Another, reported in 2023(2) Mh.L.J. 77, wherein this court has observed that,“8. After having considered the provisions of Code underwhich Civil Court is empowered to appoint CourtCommissioner as well various decisions of this Court on thesubject it is clear that, there is no hard and fact Rule thatCourt Commissioner can be appointed only at a particularstage. This Court in few decisions has permitted appointmentof Court Commissioners even before commencement of trialand in some cases appointment of Court Commissionersbefore commencement of trial is held to be erroneous. In myview, the decisions are rendered in facts of each case.However, common thread that runs through all the abovedecisions is as regards the principle that a CourtSVH 7 30-WP-7892-20.odtCommissioner can never be appointed in order to enableparties to collect evidence. It is on account of this principlethat in most of the cases this Court has held that even beforea party adduces his evidence, he cannot seek appointmentof Court Commissioner. However, if the facts of a particularcase requires the Court to ascertain the physical status ofthe land, the Court’s power to appoint Court Commissionerat any stage does not appear to be circumscribed. It alldepends upon facts and circumstances of each case.”Since the relief claimed by petitioner is of recovery ofpossession of encroached land and the same is based on the saledeed, it will be necessary to appoint a Court Commissioner toascertain the extent of encroachment. The plaintiff has relied on theextracts of consolidation scheme of the village and the award insupport of his claim that only 0.5 R land is acquired from GutNo.119, which is supported by the reply affidavit filed by the Sub-Divisional Officer, Majalgaon. Therefore, only the surveyor would bein a position to ascertain the extent of encroachment.10.So far as present case is concerned, it is submitted bylearned advocate for petitioner that after filing of the suit, writtenstatement has been filed and issues were framed. The petitionerhas filed affidavit in support of examination-in-chief, hence, the trialhas already commenced. He has thereafter filed application forappointment of Court Commissioner. In view of the same, in myopinion, it is a fit case for causing interference with the orderpassed by the trial Court and in order to ascertain the extent ofencroachment it would be necessary to carry out the measurement,through cadastral surveyor.SVH
Decision
8 30-WP-7892-20.odt11.Hence, the writ petition is allowed. Order dated01/10/2019, passed by learned Civil Judge, Senior Division,Majalgaon, Dist. Beed, below Exhibit-23 in Regular Civil SuitNo.06/2019, is hereby quashed and set aside and the applicationExhibit-23 is allowed. (MANJUSHA DESHPANDE, J.)SVH