ARVIND RAMKISAN INAMKE AND OTHERS v. THE DISTRICT COLLECTOR AHMEDNAGAR AND OTHERS
Case Details
(1) 6160.17WP IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 936 WRIT PETITION NO.6160 OF 2017 ARVIND RAMKISAN INAMKE AND OTHERS VERSUS THE DISTRICT COLLECTOR AHMEDNAGAR AND OTHERS … Mr. R.R. Karpe, Advocate for the Petitioners. Mr. S.N. Morampalle, AGP for respondent/State. Mr. S.T. Shelke, Advocate for respondent nos.2 and 3. Mr. A.V. Hon, Advocate for respondent nos.5 to 9, 11, Mr.P.V. Barde, Advocate for respondent no.12. … CORAM : SANDEEP V. MARNE, J. DATED : 01st DECEMBER, 2022. PER COURT:- 1. By this petition, the petitioners challenge the order dated 25.11.2016 rejecting application for remeasurement by the T.I.L.R. for ascertaining the exact area of encroachment and also challenging the order dated 4th February, 2017 on an application fled for the said purpose. 2. Earlier, on application at Exhibit-10 fled by the
Facts
plaintiffs for appointment of Court Commissioner for measurement of land and fxing the boundaries, the trial Court passed the following order on 30.01.2013 .:- “ORDER The cadestral surveyor in the ofce of T.I.L.R., Rahata is appointed as the Court commissioner for carrying out urgent joint measurement of the lands bearing G.No.45/1, (2) 6160.17WP G.No.45/2 and G.No.45/3, the area of Nandur- Galnimb road between the suit lands and lands of defendants No.5 to 11 at Nandur Khurd, Tal. Rahata, Dist. Ahmadnagar and adjacent lands thereof if necessary, after giving notice to the parties concerned and shall carry out joint measurement of these lands on the basis of 7/12 extracts, phalani, tipan, survey map, gat book map and documents of title, if any and shall demarcate boundaries of the suit lands (G. No. 45/1, G.No.45/2 and G.No. 45/3) and shall also show the precise and concise area under encroachment out of the suit lands, if any in the map itself and submit his report along with the map on or before 30.3.2013.” 3. Thus, the Court had specifcally directed T.I.L.R. to show the precise and concise area under encroachment out of the suit land. 4. I have perused the map prepared by the T.I.L.R. consequent to the measurement carried out by him. The
Legal Reasoning
map, prima facie, shows that petitioner nos.1 to 3 appeared to be in possession of the lesser land than the boundaries of Gat no.45. However, map does not show as to who is in possession of the land demarcated by straight line and one demarcated by doted line. Also the exact area under encroachment is also not indicated in the map despite clear direction of the trial Court. (3) 6160.17WP 5. Under these circumstances, the plaintiffs moved application on 19.08.2016 seeking direction to T.I.L.R. to point out the exact area under encroachment. Application is turned down on 25.11.2016. The plaintiffs fled another application on 08.12.2016 seeking clarifcation about the exact area under encroachment. This application is turned down on 4th February, 2017 on the ground that the earlier application was already rejected on 25.11.2016. 6. Mr. Hon, learned counsel appearing for respondent Nos.5 to 9 and 11 opposes the petition. He would submit that the reasons why the details of encroachment are not specifed on the measurement map is absence of such encroachment. He would submit that approach of the plaintiffs is to delay the proceedings by submitting that the plaintiffs waited for period of three long years for fling the application for ascertainment of exact area of encroachment. He relies upon the judgment of this Court in the case of Gangadhar Mahadu Gajakas Vs Shantilal Ubhaychand Gandhi reported in 2001(3) Bom. C.R. 260 in support of his submission that the job done by the Commissioner cannot be faulted and if the plaintiffs are not satisfed with the measurement, they have to fle fresh suit. 7. Mr. Barde, learned counsel for respondent no.12 would also oppose the petition and submit that in the event the plaintiffs feel that any particular details are not disclosed in the measurement map, the plaintiffs would be free to examine/cross-examine the T.I.L.R. while leading evidence and that remeasurement of the property is not warranted. (4) 6160.17WP 8. After having heard the learned counsel for the parties and particularly on perusal of the order dated 30.01.2013 and the measurement map, it is clear that T.I.L.R. has not indicated if there is any encroachment, who has committed encroachment and what is the extent of encroachment. Prima facie, it appears that the plaintiffs are in possession of lesser area than the area of Gat no.45 and gap between straight line and doted line on the western side of the land appears to be not in possession of the plaintiffs. Who is in possession of that land is not indicated by the T.I.L.R. The area of that land is also not specifed. Therefore, from measurement map, though prima facie picture is created that the plaintiffs are in possession of lesser area than the area of their Gat Number, the details of encroachment have not been refected. It would be, therefore, in the interest of justice to direct the T.I.L.R. to revisit the property for the purpose of ascertaining the encroachment if any and details thereof. 9. Reliance of Mr. Hon, the learned counsel on the judgment of this Court in the case of Gangadhar Mahadu Gajakas (supra) is of no avail as there was compromise decree in that case and the parties had agreed that the measurement should be done by D.I.L.R. In view of the consent terms fled by the parties, it was held that it is not open for them to complain about the measurement undertaken by D.I.L.R. The judgment, therefore, has no application to the facts of the present case. Accordingly, the petition succeed. The orders dated 04.02.2017 and 25.11.2016 are set aside. The petitioners’ application dated 19.08.2016 stands allowed in terms of the prayers made therein. (5) 6160.17WP 10. The petitioners to bear the expenses of Court Commissioner to be decided by the trial Court. Trial Court shall not be infuenced by the observations made in the present order while deciding the suit fnally. 11. The petition is disposed of in above terms. (SANDEEP V. MARNE) JUDGE sga/-