High Court

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C3wp6499-24IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD3 WRIT PETITION NO. 6499 OF 2024GOPALRAO BABURAO SONDGE AND ANOTHERVERSUSSHRI GAJANAN MAHARAJ SHEGAON MANDIR VISHWANATHMANDAL AURANGABAD THROUGH ITS PRESIDENT AND ANOTHER...Mr. Nikam Prashant K, Advocate for the PetitionersCORAM: Y. G. KHOBRAGADE, J.DATE : 23rd September, 2024ORDER: 1.Heard Shri Nikam, the learned Advocate for the Petitioners,at length.2. By the present Petition, the Petitioners have impugned theorder dated 9.11.2022 passed by the leaned Civil Judge, JuniorDivision, Paithan below Exh. 39 in Regular Civil Suit No. 316 of 2008,thereby turned down the request of the Petitioners/Original Plaintiffsfor issuance of directions to the Court Commissioner to submit thefresh/revised report. 3. The learned counsel appearing for the Petitioners canvass invehemence that, the Petitioners/Plaintiffs filed a Regular Civil Suit No.316 of 2008 and prayed for decree of injunction restraining thePage 1 of 6 C3wp6499-24defendants from erecting cement poles by making encroachment overtheir land and interfering with their peaceful possession over the landbearing Survey No. 289 admeasuring 9H 95 R (24A 35 R), to theextent of 2 H 2 R, which is bounded as under:To the East: Small canal (Chari) and land of Dr. LahareTo the West : Land of Shri BhagwanTo the North : Land of Shri Suhas Vitthal DhavaleTo the South: Land of Defendant No.1,4.The learned counsel appearing for the Petitioners canvassthat since the Petitioners/ Plaintiffs speficially pleaded that, thedefendants are erecting ement poles on their land by makingencroachment, therefore, on 17.04.2013, the Petitioners filedApplication Exh. 30 under order 26 Rule 9 of Civil Procedure Code andprayed for appointment of Court Commissioner. On 4th December,2013, the learned Trial Court passed an order below Exh. 30 andappointed the Court Commissioner (TILR) to measure the land BlockNo. 289 of village Kasbe Paithan from southern side of land of thePlaintiffs and from northern side of the land of defendant No.1 and tofile report of measurement to the Court regarding any encroachmentover the Plaintiffs' land.5.Since the Court Commissioner (TILR) did not follow theorder dated 04.12.2013 and no specific report has been submittedPage 2 of 6 C3wp6499-24about the encroached area by the Defendants, the Plaintiffs have filedExh. 39 Application for issuance of directions against the CourtCommissioner to execute the Commission properly and submit reportin consonance with the order dated 04.12.2013 passed below Exh. 30. 6.The learned counsel appearing for the Petitioner canvassedthat, the plaintiffs have specific pleadings that, Block No. 289admeasures 10 H and 7 R and in Paragraph No. 6 specifically pleadedthat the defendants are trying to dig the ditches in the suit land forerecting cement poles in order to grab 10 gunthas of land of theplaintiffs towards southern side. The Court Commissioner failed tocomply with the directions issued in order dated 04.12.2013 passedbelow Exh. 30 but only shown the area without conducting actualinspection of the disputed lands and shown 1 H 98 R in possession ofthe plaintiffs, however, the Court Commissioner failed to showremaining area of 2 R. Therefore, it is necessary to issue directions tothe Court Commissioner for proper measurement of the area and tosubmit the report.7.The learned counsel for the Petitioners placed reliance on thecase of Chandkhan Faridkhan Patel Vs. Mehrunissa Begum, 2019 0Supreme (Bom) 2053, wherein coordinate bench of this court heldthat, the Court Commissioner had measured the land without service ofnotice in respect of measurement, therefore, considering the law laidPage 3 of 6 C3wp6499-24down in Ushabai Bannore, (2004)2 Mh.L.J. 594), the Court remandedthe matter for measurement of the land.8.In case in hand it is not in dispute that, on 04.12.2013, thelearned Trial Court passed an order below Exh.30 and appointed theTILR, Paithan as Court Commissioner with the directions aboutmeasurment of the land Block No. 289 of village Kasbe Paithan from thesouthern side of plaintiff's land and from northern side of land ofDefendant No.1 and submit report. The Plaintiffs claimed that the BlockNo. 289 is admeasuring 10 H 7 R and the defendants are trying to dig asmall ditches to erect the cement poles in order to grab their 10 gunthasfrom southern side but the Court Commissioner has not shown 2 Rland and did not carry out measurement as per directions issued underorder dated 04.12.2023 passed below Exh. 30.9.Needless to say that the report of the Court Commissioner isnot the conclusive proof unless the said report is testified in the Court oflaw by examining the Court Commissioner and cross examiantion bythe adverse party. In case of Vijay Shrawan Shende & others Vs State ofMaharashtra, 2009 (5) Mh.L.J. 279, the Coordinate Bench of this Courtheld that to prove the fact of encroachment, the Court Commissionerwho measured the land and submitted the report, requiree to be provedas per the procedure laid down in Section 36 and Section 60 of theEvidence Act.Page 4 of 6 C3wp6499-2410. In case of Kolhapuri Bandu Lakade Vs. Yallappa ChinappaLakade, 2011 (3) Mh.L.J. 348, this Court has observed in ParagraphNos 17 to 20 as under:"17. In so far as the facts in the present case are concerned,undisputedly, one of the main areas of dispute between theparties is as to whether the construction is on City SurveyNo.1894 or City Survey No.1895. It is the contention of thePetitioner that the construction is on City Survey No.1894,whereas it is the contention of the original Defendant that it is onCity Survey No.1895, which according to him is in his possessionfrom the period of his ancestors. No doubt that there are otherancillary issues regarding the title of the property also. However,in so far as claim of the Plaintiff regarding the entitlement ofDefendant to City Survey No.1895 is concerned, the same is notcontested by the Plaintiff. At the same time, in so far as theentitlement of the Plaintiff to City Survey No.1894 is concerned,the same is not contested by the Defendants. 18. One more fact that needs to be taken into consideration isthat though the Petitioner had applied for getting themeasurement done through the City Survey Officer, the samecould be done as the Defendants-Respondents had objected tothe measurement being carried out by the City Survey Officer onthe ground of pendency of the Regular Civil Suit No.513 of 2007between the parties. 19. In that view of the matter, to find out as to whether theDefendants have, in fact, encroached upon the City SurveyNo.1894 or not, I find that the appointment of CourtCommissioner would assist the Court in arriving at the justdecision. Needless to state that, as has been consistentlyPage 5 of 6 C3wp6499-24observed, the report of the Court Commissioner WP/6497/2009would not be conclusive and if any of the parties are aggrieved bythe same, such a party would always be entitled to cross-examinethe Court Commissioner, so as to challenge the veracity of thereport. 20. In that view of the matter, the Writ Petition succeeds. Theimpugned order dated 7th July, 2009 passed by the learned 8thJoint Civil Judge, Senior Division, Pune below Exhibit 35 inRegular Civil Suit No.513 of 2007 is quashed and set aside. Theapplication filed by the Petitioner-Plaintiff below Exhibit 35 inRegular Civil Suit No. 513 of 2007 for appointment of CitySurvey Officer as "Court Commissioner" is allowed. "11. In the present case, indeed, the learned Trial Court appointedthe TILR as a Court Commissioner at the instance of the Petitionersvide order dated 04.12.2013 passed below Exh. 30. The TILR appears tohave measured the land and submitted the report. If the Petitioners/Plaintiffs does not agree with the said report in that event, certainlythey will have a right to cross examine the Court commissioner tochallenge the veracity of the report. 12. In view of the above discussion, I do not find substance tointerfere with the findings recorded by the Trial Court. Hence thePetition is dismissed.( Y. G. KHOBRAGADE, J. )JPChavanPage 6 of 6