High Court

Legal Reasoning

{1} A.O. 27-2024IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADAPPEAL FROM ORDER NO. 27 OF 2024WITH CIVIL APPLICATION NO. 6819 OF 2024 IN AO/15/20241.Murhari s/o. Vishwambhar Nikam2.Shrihari s/o. Vishwambhar Nikam … APPELLANTS (Ori. Defendants)VERSUS1.Ganesh s/o. Gopalrao Nikam2.Dattatraya s/o. Gopalrao Nikam … RESPONDENTS (Ori. Plaintiffs)…Mr. Satish S. Manale – Advocate for AppellantsMr. Sachin S. Panale – Advocate for Respondents….CORAM : SANDIPKUMAR C. MORE, J.DATE : 4th October, 2024ORDER : 1.Heard finally with consent of the parties at admission stage.2.The present respondents have challenged the judgment anddecree passed by the Principal District Judge, Latur (hereinafterreferred to as “the learned First Appellate Court”) in Regular CivilAppeal No. 196 of 2015 on 16.03.2024.3.Background facts of the case are as under :The appellants are the original defendants in Regular CivilSuit No. 2 of 2010 which was filed by the presentPooja Kale {2} A.O. 27-2024respondents/plaintiffs for getting possession of encroached portionof 18 R out of land Gat No. 112 to the extent of 1 H 49 R situatedat village Mohadal, Tq. Chakur, Dist. Latur, which according tothem encroached upon by the present appellants/defendants. Thelearned Civil Judge, Junior Division, Chakur, Dist. Latur(hereinafter referred to as “the learned Trial Court”) by conductingthe trial dismissed the same. However, the respondents/plaintiffspreferred an appeal bearing Regular Civil Appeal No. 196 of 2015before the learned First Appellate Court and vide judgment anddecree the learned First Appellate Court on 16.03.2024 set asidedismissal of the suit of the plaintiffs and remanded the matterback to the learned Trial Court with direction that the plaintiffsand defendants should file an application for measurement of landGat No. 112 by depositing the proportionate measurement fees.Feeling aggrieved with the said order of remand the originaldefendants who are the present appellants have filed this appeal.4.Learned Counsel for the appellants/defendants submittedthat, the learned First Appellate Court has definitely erred inremanding the matter back to the learned Trial Court. According tohim, despite appointment of surveyor the respondents/plaintiffscould not establish the alleged encroachment of 18 R land againstPooja Kale {3} A.O. 27-2024the defendants. He pointed out that, the learned First AppellateCourt could have dismiss the matter by discussing the evidence ofplaintiffs and their witnesses without remanding the matter backto the learned Trial Court. In support of his submissions he reliedupon the following judgments :(i)This Court in the case of Vij Kamagar SahakariPatsanstha Ltd. Vs. Ramkrushna Dhondiram Thorat and Ors., in Writ Petition No. 4974 of 2008 reportedin 2009 (3) ALL MR 389 decided on 07.10.2008(ii)This Court in the case of Madhukar Dashrath BhilaPatil and Ors. Vs. Avinash Bhila Patil and Anr., inAppeal From Order No. 54 of 2010 reported inAIROnline 2023 BOM 920 decided on 13.06.20235.On the contrary, learned Counsel for the respondentssupported the impugned judgment of the learned First AppellateCourt. He pointed out that, the learned First Appellate Court hasproperly considered the evidence on record and then came to theconclusion that, the surveyor made so many mistakes in carryingout the measurement and therefore, a joint measurement isrequired to settle the dispute between the parties once for all.6.Heard rival submissions and also perused the documents onrecord alongwith the impugned judgment and citations relied uponPooja Kale {4} A.O. 27-2024by the appellants.7.It is significant to note that, the learned Trial Court whiledismissing the suit of the respondents/plaintiffs had categoricallyheld that, the surveyor had measured only the land which was inpossession of the plaintiffs and erred in not measuring the land ofentire Gat No. 112, wherein the possession of the rival partiesaccording to their areas is in existence. The measurement map atExhibit – 36 was considered by the learned Trial Court and sameaccording to it demonstrated that the measurement was notproperly done. It is further observed by the learned Trial Courtthat, to ascertain encroachment made by the adjacent land holderjoint measurement is necessary. Further, the learned Trial Courthas also observed that he did not consider the area of Nala presentat northern side of the disputed land. Moreover, one canal isflowing from western side of the suit property having width of 10 to15 feet also does not appear in the map Exhibit – 36. Thus, thelearned Trial Court has dismissed the suit of therespondents/plaintiffs as the map Exhibit – 36 does not disclosethe true situation of the suit property.8.Learned Counsel for the appellants relied on the judgment ofPooja Kale {5} A.O. 27-2024this Court in the case of Madhukar Dashrath Bhila Patil (supra)wherein it is observed that, “an order of remand cannot be passedonly on the ground that the trial court has not properlyappreciated the evidence; as the appellate court itself has thejurisdiction to enter into the facts and appreciate the evidence”.Admittedly, the Appellate Court can independently appreciated theevidence on record but the said evidence must be sufficient todecide the real controversy between the parties. In the instantmatter it appears that, the surveyor who carried out themeasurement has made many mistakes and did not consider vitalaspect i.e. existence of Nala/canal and their respective areas whichare missing from the measurement map Exhibit – 36. Thus, itappears that the surveyor did not conduct proper measurementtherefore, the observation of the learned First Appellate Court thatupon such illegal measurement a complete and substantial justicecannot be done, is definitely a correct observation. It is settled byvarious judgments of this Court as well as the judgments of theHon’ble Apex Court that in case of dispute over the boundariesbest remedy is to carry out the joint measurement. Therefore, theorder passed by the learned First Appellate Court remanding thematter for fresh joint measurement cannot faulted with.Pooja Kale {6} A.O. 27-20249.Learned Counsel for the appellants vehemently argued that,the learned First Appellate Court has unnecessarily cast financialburden on the appellants by directing that the plaintiffs anddefendants shall deposit the measurement fees proportionately. Asagainst this the learned Counsel for the respondents/plaintiffsmade submission that, the plaintiffs alone are ready to bearexpenses of measurement. Admittedly, the burden to prove allegedencroachment was upon the plaintiffs and therefore, it wouldrather be harsh to ask the appellants/defendants to bearproportionate expenses of measurement. Thus, only modificationto that effect is required in the operative part of order passed bythe learned First Appellate Court. As such, the present AppealFrom Order stands dismissed at admission stage, however clause –4 of the operative order of learned Principal District Judge, Latur,Dist. Latur, dated 16.03.2024 is modified as below :4.The plaintiffs shall deposit the measurement fees inrespect of land Gat No. 112 as directed.10.Appeal from Order is accordingly disposed of alongwithpending Civil Application No. 6819 of 2024. [ SANDIPKUMAR C. MORE ] JUDGEPooja Kale