High Court

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{1} 933-SA-232.2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 232 OF 2019.Shridhar Bhadu PatilAge: 72 Years, Occu.: Agriculturist, R/o. Anvarde Budruk, Taluka Chopda, District Jalgaon .. Appellant.VERSUS1] Baliram Zaga Patil Since deceased through LRS1A] Yuvraj Baliram Patil Age: 54 Years, Occu.: Agriculturist,1B] Ashok Baliram Patil Age: 50 Years, Occu.: Agriculturist, 1A & 1B Both R/o. Ghodgaon, Taluka Chopda, District Jalgaon2] Dhudku Bhila Patil Since deceased through LRS 2A1 Sakhubai Dhudku Patil died Age: 70 Years, Occu.: Household, R/o. Kusumbe, At Post Ghodgaon, Taluka Chopda, District Jalgaon2A] Sakhbai Dhaku Patil, Age 70 years, Occ. Household, At Post Ghodgaon, Taluka Chopda, District Jalgaon.2B) Jijabai Bhanudas Patil Age: 52 Years, Occu: Household R/o. At Post Kurakwade, Taluka Shindkheda, District Dhule2C] Meenabal Vishwas Patil Age: 50 Years, Occu.: Household, R/o. Borole Nagar, Near Pankaj School, Chopda, Taluka Chopda, District Jalgaon2D] Sarlabai Vikas Patil Age: 48 Years, Occu.: Household R/o. Takewade, {2} 933-SA-232.2019.odt Taluka Chalisgaon District Jalgaon2E] Janabai Bapu Desale Age: 46 Years, Occu.: Household, R/o. Chinchkheda, Taluka & District Dhule2F] Ranchhod Dhudku Patil Age: 44, Occu.: Service, R/o. Aasaram Nagar, Near HP Gas Agency, Yawal, District Jalgaon2G] Sambhaji Dhudku Patil Age: 35 Years Occu.: Agriculturist,2H] Vishwas Dhudku Patil Age: 32 Years, Occu.: Agriculturist, 2G & 2H Both R/o. Kusumbe, At Post Ghodgaon, Taluka Chopda, District Jalgaon3] Shriram Baliram Patil Age: 55 Years, Occu.: Agriculturist,4] Vimalbai D/o. Baliram Patil Age: 48 Years, Occu.: Household 3 & 4 Both R/o. Kusumbe, At Post Ghodgaon, Taluka Chopda, District Jalgaon...Respondents.(Org. Defendants (Respondents in First appeal)….. Mr. Subodh Shah, Advocate for appellant Miss Devika Patil, Advocate holding for Mr. N.L. Chaudhari, Advocate forrespondents. CORAM : S.G. CHAPALGAONKAR, J. DATE : 18TH DECEMBER, 2024. JUDGMENT . :-The appellant (original plaintiff) impugns the judgment anddecree dated 28.11.2017 passed by learned district Judge, Dhule, in {3} 933-SA-232.2019.odtR.C.A. No. 91 of 2008, thereby upholding the judgment and decree dated25.7.2008 passed by Civil Judge (J.D.), Shirpur, in R.C.S. No. 12 of 1988,by which suit of the plaintiff seeking possession and removal ofencroachment has been dismissed.2.For sake of convenience, parties are referred to, as per theiroriginal status.3.Mr. Subodh Shah, learned advocate for the appellant submitsthat plaintiff is owner of western portion of land Gat No. 290/1 situatedat Mouje Bhabe, Taluka Shirpur, Dist. Dhule. The defendant’s landbearing Gat No. 301 is abutting the western side of Gat No. 290/1. Thereis a common bandh between two lands. Plaintiff asserted that since 1982defendant No.1 gradually damaged, destroyed common bandh andencroached upon land of plaintiff. On 23.5.1986, measurement wascaused by plaintiff through cadastral surveyor. It was revealed that 70Rland out of Gat No. 290/1 is encroached by defendant No.1. Accordingly,suit was instituted for possession of encroached portion againstdefendant No.1.4.Defendants refuted plaintiff’s claim. They asserted that thereis private Bandh between his land and land of the plaintiff. There are oldtrees grown up on Bandh between two lands. The claim as regards toencroachment made by plaintiff is fallacious. Consequently, defendantssought dismissal of the suit.5.During pendency of the suit, a Court Commissioner wasappointed. Mr. Murlidhar Hole, TILR caused measurement and {4} 933-SA-232.2019.odtsubmitted his report on 20.8.2002. He was examined as witness onbehalf of plaintiff. However, Trial court observed that measurement mapprepared by TILR cannot be relied upon since whole Gat Numbers 290and 301 are not measured. The exact area of two lands is not discerniblefrom the measurement map. Further, Nadipad area is not counted for.The trial court recorded serious defects in the measurement carried bythe TILR and consequently, discarded plaintiff’s claim.6.Aggrieved plaintiff approached learned District Judge byfiling R.C.A. No. 91 of 2008. He raised a specific ground that he is readyto go for fresh measurement and bear necessary cost of suchmeasurement. The gist of submissions before first appellate court wasthat, if there is no reliable measurement map on record of the court, theappellate court may exercise jurisdiction under Order 26 Rule 9 of CPCand after getting fresh measurement map, take final decision as regardsto the rival claims. However, learned District Judge finding very samedefect in the measurement map already on record, concurred with trialcourt.7.Mr. Subodh Shah learned advocate for appellant, after takingthis court through findings recorded by courts below, pressed into servicethe following substantial question of lawI]Whether there is failure on the part of learned District Court to exercise the power under Order XXVI, Rule 9 of the Civil Procedure Code, 1908. Section 75 and specifically clause (b) thereof empowers the Court to make local investigation. Rule 9 of Order XXVI enable the Court where it provides thatlocal investigation is requisite or proper for the purpose of elucidating any mater in dispute, to issue a commission to {5} 933-SA-232.2019.odtsuch person at it thinks fit to make such investigation and report thereof to the Court.The learned District Court failed to appreciate the principle laid by Hon'ble Supreme Court and the High Court in variousjudgments that, in case of dispute of an encroachment or dimension of a site, the first essential is to get an agreed mapand if the parties cannot agree on one, a commissioner must be appointed to prepare the same.II]Whether the learned 1st appellate Court has committed a manifest error of law, in not appointing the court commissioner, for the measurement of the land Gat No. 290 & 301? III]Whether the learned District Court failed to exercise the jurisdiction under Order 26 R/w Section 75 of the Code of Civil Procedure, 1908, which ultimately resulted in miscarriage of justice?8.Learned advocates appearing for both sides, requested thiscourt to decide appeal at the stage of admission and advanced respectivesubmissions on aforesaid substantial questions of law. Learned advocatefor the respondents submits that plaintiff failed to prove his case. Earlier,he relied upon the measurement map of 1986; thereafter, map preparedby the Court Commission in the year 2002, but failed to prove his case ofalleged encroachment of 71 R land by defendant No.1. The Courts belowhave concurrently recorded finding that plaintiff failed to prove his case.Hence, no case for interference is made out.9.Per contra, Mr. Shah learned advocate relying uponjudgment of this Court in the case of Bento Antonio Gomes alias AntonioBento Gomes vs. Basario Salvador Carneiro and others reported in(2014) 4 Mh. L.J. 366, submits that when evidence is found unreliable {6} 933-SA-232.2019.odtdue to technical defects and no cadastral expert’s evidence is availableon record, the appellate court should have remanded the matter to thetrial court by appointing an expert as Commissioner for doing localinspection, instead of non-suiting plaintiff for technical defects in themeasurement carried out by the Court Commissioner.10.There cannot two opinions about the law laid down by thisCourt, which is derives support from observations of the Supreme Courtof India in the case of Haryana Wakf Board vs. Shanti Prasad (2006) 8SCC 671.11.In the present case, plaintiff instituted suit on the basis ofprivate measurement, later on Court Commissioner was appointed andhis report was placed before trial court, which prima-facie depictsencroachment by defendant No.1. True, that entire gat number wasmeasured by TILR while acting as Court Commissioner, which makes hisreport technically unacceptable. In fact, when technical error iscommitted by survey officer, plaintiff can not be blamed. The Plaintiffwas faced with such situation for reasons beyond his control, therefore, aspecific contention was raised by him before appellate court that he isready to bear the cost of re-measurement and sought reappointment ofCourt Commissioner. In this background, it would have been appropriateon part of learned District Judge to exercise powers under Order 26 Rule9 of CPC and grant an opportunity to plaintiff to bring on record defectfree spot inspection by which lis can be finally decided. Apparently,jurisdictional error at the hands of learned district judge is discernible inexercise of jurisdiction under Order 26 Rule 9 of CPC. {7} 933-SA-232.2019.odt12.In that view of the matter, the substantial questions of lawpressed into service will have to be answered in affirmative and secondappeal needs to be partly allowed, thereby remanding matter back totrial court, with direction to consider plaintiff’s prayer for appointment ofCourt Commissioner for spot inspection and measurement of land.Hence, the following order :-O R D E R[i]Second appeal is partly allowed;[ii]impugned judgments and decrees passed by trial court and first appellate court are hereby quashed and set aside;[iii]The matter is relegated back to the trial court at the stage of evidence.[iv]Parties shall appear before the trial court on 28.1.2025.Plaintiff shall be at liberty to make an application seeking appointment of Court Commissioner / TILR for measurement of suit lands so as to find out encroachment, if any, which shall be favorably considered by trial court.[v]Parties shall be at liberty to lead additional evidence, if they wish, on issues which are already framed;[S.G. CHAPALGAONKAR, J] grt/-