Ibrahim Yesubhai Tamboli v. Mohammad Yesubhai Tamboli & Ors.

Mr. K.D. Borde h/f. Mr. K.M. Nagarkar, Advocate for respondent No.2. P.C. :- CORAM : A.V. NIRGUDE,J. DATED :

26.09.2012

1. This petition challenges order dated 21.01.2012 passed by the Jt. Civil Judge, Junior Division, Shevgaon, Dist. Ahmednagar, on Exh.57, in R.C.S. No. 113 of 2008, in which the petitioner is plaintiff.

2. The petitioner had filed the suit for recovery of portion of agricultural land which according to him is encroached by respondents/defendant Nos.1 & 2. During the pendency of this suit, certain order was passed appointing the Court Commissioner for taking measurements of the suit land. Such measurements were taken and the report has also come on record, but apparently both the petitioner as well as respondent Nos.1 & 2 are not happy with the report. They assert that the report is not ( 2 ) wp2088.12 correct and should not be brought on record. The petitioner, thereafter, moved present application Exh.57, requesting the Court to appoint one more Court Commissioner for taking measurements etc. This time, he said that instead of the T.I.L.R., Shevgaon, the D.I.L.R., Ahmednagar, should be appointed, so that the work of measurements would be done properly.

3. Learned Judge refused to oblige the petitioner. He held that provisions of Order 26 of C.P.C. would not permit him to appoint the Court Commissioner, once again for the same work, which was done earlier by the first Commissioner. Learned Judge probably takes support from certain judgment of High Court to come to this conclusion. But for some other reasons, I am not inclined to disturb the impugned order.

4. First and foremost reasons is that the petitioner/plaintiff should not be allowed to collect evidence after filing of the suit that too with the assistance of the Court. When a party comes to the Court alleging encroachment by his opponent, he must give particulars of the encroachment. Unless he has definite and certain information about the encroachment, he should not file suit for recovery and possession. If such suit is filed without giving particulars of encroachment, the ( 3 ) wp2088.12 plaint is liable to be rejected.

5. There is one more reason why the application for appointment of the Court Commissioner to take measurements of the suit land should be refused. The reasons lie in the contents of the plaint. The petitioner/plaintiff has come with a case that the suit land bears Survey No. 386/2C, which has area of 46 R. He asserted that prior to 2002, respondent No.1 & 2 (defendant Nos.1 & 2) made encroachment of this land to the extent of 16 ½ Guntha on eastern side. The petitioner/plaintiff also asserted that due to this nuisance he alienated encroached portion of the suit land (to the extent of 16½ Guntha) to respondent Nos.3 & 4. The petitioner/plaintiff further mentioned that before he could take preventive action, respondent Nos.1 & 2 (defendant Nos.1 & 2) succeeded in making encroachment on the entire land (Gat No. 387/2C to the extent of 46 guntha). The petitioner, however, also stated that after he sold affected 16 ½ Guntha land to respondent Nos. 3 & 4, they took possession of the same, without giving details as to how they could do so since the respondents were admittedly in possession of that area. In any case, it is clear that the petitioner/plaintiff has lost entire land admeasuring 46 R either at the hands of defendant Nos.1 & 2 or at the hands of respondent Nos. 1 to 4. In ( 4 ) wp2088.12 this background, the petitioner/plaintiff said that he was entitled to possession of 29 ½ Guntha land from the suit land. He, therefore, wants the Court Commissioner to go on the spot and demarcate the boundary between the portion admeasuring 16 ½ R of the suit land and the remaining 29 ½ R land. I am afraid, such investigation at such belated stage is not permissible in the facts of this case. As said above, the petitioner/plaintiff had filed previous suit against the same party (respondent Nos. 1 & 2) for recovery of about 16 ½ Guntha land and during the pendency of said suit, the Court Commissioner was also appointed and he filed report showing encroachment to the extent of 16½ Guntha land by respondent Nos.1 & 2. Despite availability of this report, the petitioner/plaintiff once again in the present suit made application for appointment of Court Commissioner.

6. Now the petitioner makes third application for appointment of the Court Commissioner for taking measurements once again. In the facts of this case, I am of the view that the petitioner/plaintiff has exhausted all his opportunities to get the suit land measured. The material that has been collected so far should be sufficient to decide the case. Of course, as indicated above, the petitioner/plaintiff may rely on the previous ( 5 ) wp2088.12 report of the Court Commissioner and may challenge the correctness of the second report. The petitioner cannot expect the Court to keep investigating his case until the evidence suitable to him comes on record.

7. The learned Counsel appearing for the petitioner placed reliance on two judgments. One is of Supreme Court in he case of Haryana Waqf Board Vs. Shanti Sarup & Ors., AIR 2008 SC (Supp) 616 and other is of this Court in the case of Kolhapuri Bandu Lakade Vs. Yallapa Chinappa Lakade, 2011 (3) ALL MR 499. The Supreme Court in the above mentioned judgment, held as under :- “2. ............. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of CPC. ..............”

8. Having regard to the above observations of the Supreme Court, learned Single Judge of this Court also permitted appointment of the Court Commissioner for getting disputed boundary between properties of litigating parties demarcated. He held that by taking such steps, no prejudice is caused to any party. ( 6 ) wp2088.12

9. Both these judgments are of no avail to the petitioner/plaintiff. As mentioned above the petitioner/ plaintiff has availed opportunity of getting the land measured through the Court Commissioner and therefore it cannot be said that he has been denied such opportunity. But as said above, there bound to be some limit to such investigation and in the facts of this case, I am of the view that further investigation should not be allowed to be undertaken.

10. The petitioner/plaintiff should realize that it is for him to prove his case. Along with depositions, which are likely to be recorded in this case, there would be at least two reports of Court Commissioner on record and if these reports are properly proved, the evidence so collected would probably be sufficient to decide this case. The writ petition should, therefore, fail.

11. The writ petition stands dismissed. snk/2012/SEP12/wp2088.12 [A.V.NIRGUDE,J.]