MOHD AHMED BASIT MOHD AHMAD GANI v. ANANDRAO MANIKRAO PAWAR AND OTHERS
Case Details
{1} 902-SA-614-2021 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 614 OF 2021 WITH CA/13466/2021 IN SA/614/2021 MOHD AHMED BASIT MOHD AHMAD GANI VERSUS ANANDRAO MANIKRAO PAWAR AND OTHERS … Advocate for Appellant : Mr. J.H. Deshmukh Advocate for Respondent Nos.1 to 3 : Mr. Satyajit Bora Advocate for Respondent No.4 : Mr. G.L. Deshpande …. CORAM : RAJESH S. PATIL, J. DATE : 15th December, 2022 PER COURT : 1. This Second Appeal is fled by original defendant against the concurrent fndings of both the lower Courts below. 2. Respondents/original plaintifs fled a suit against the
Legal Reasoning
defendant/appellant herein for a relief of removal of encroachment and possession with consequential reliefs of perpetual injunction. The plaintifs stated that, they are the owners of the suit land pursuant to registered sale-deed dated 29th October, 1987. Pursuant to which his name was recorded in revenue record i.e. land survey No. 542, admeasuring 24R situated at village Balapur, Tq. Dharmabad, Dist. Nanded. It was the plaintifss case that, Pooja K. {2} 902-SA-614-2021 defendant encroached over 4R land in survey No.542. Therefore, on 18th November, 2007, plaintifs measured the land survey No.542, through Taluka Inspector of Land Records (hereinafter referred to as “T.I.L.R.”), Dharmabad. As per the said measurement map, it was found that, defendant had encroached over 4R land in survey No.542. The plaintifs also examined the cadestral surveyor and, they have specifcally deposed that, they have issued notices to the adjacent land owners of land survey No.542 and carried out the measurement and more particularly issued notice to the defendant. At the time of measurement defendant was present. After such measurement it was found that, defendant had encroached over the land survey No.542 to the extent of 4R. 3. The defendant (appellant herein) has raised defence that, he had measured his land through T.I.L.R., Biloli on 2nd April, 2002, and as per the said measurement there is no encroachment over land survey No.542. As per the defendant, he is owner of land survey No.610/1, which according to him is divided in two parts i.e. Dharmabad to Balapur Road. According to him small piece of 4R land is adjacent to land survey No.542. Hence, according to defendant, he has not made any encroachment over land survey No.542 to the extent of 4R. Defendant examined himself as well as Pooja K. {3} 902-SA-614-2021 examined cadestral surveyor. On perusal of defendantss testimony, during his cross-examination he admitted that, at the time of measurement of land survey No.610/1, he has not given any notice to the plaintifs, and the plaintifs were not present at the time of measurement of land survey No.610/1. 4. Thus it is clear that, while defendant carried out the measurement through cadestral surveyor, he has not issued notices to the adjoining land owners, and more specifcally to the plaintif who was the owner of land survey No.542. 5. With this kind of an evidence, the Trial Court decreed the suit of plaintifs and directed the defendant to deliver the possession of 4R land so also restrained defendant and his relatives and other persons, authority holders from alienating suit land to any third person. An appeal carried against the judgment and decree of the Trial Court by the defendant (present appellant) was also dismissed. The present Second Appeal is against the concurrent fndings of both the Courts below. 6. I have heard both the sides. The learned Counsel for the appellant has produced on record judgment passed in Second Appeal No.294 of 2017. I have gone through the said judgment. In Pooja K. {4} 902-SA-614-2021 the said judgment the First Appellate Court was of the opinion that, there was a necessity to have joint measurement of block Nos.47 and 56 owned by the defendant. Hence, the facts of the said judgment in Second Appeal No.294 of 1997 are quite diferent than the matter in hand. 7. Learned Counsel for the appellant has also relied upon the judgment of this Court at Principal seat in the case of Omprakash, Gulabchand Bajoria Vs. Ramesh Ramnivas Soni, Shaikh Malang, Sheikh Husain reported in LAWS(BOM)-2003-8-43 decided on 20th August, 2003 and more particularly paragraph 17 of the said judgment, which reads as under : I may also usefully refer the decision of Apex Court in E. Achuthan Nair v.P. Narayanan Nair and anr.- (1987) 4 SCC 71 wherein it was held, “in India, the question whether a suit is cognizable by a civil court is to be decided with reference to Section 9 of the Civil Procedure Code. If the suit is of a civil nature, the court will have jurisdiction to try the suit unless it is either expressly or impliedly barred. A dispute regarding identifcation of boundary between two adjacent land owners is certainly a dispute of a civil nature and it is not barred either expressly or impliedly. The Courts in India will not be justifed in importing the technicalities of English law and the distinction made by the English courts between legal estates and equitable estates. The report submitted by the Commissioner appointed by the trial court to locate the boundary in the manner indicated in the agreement between the parties was rightly accepted by the High Court. (emphasis supplied). The decree passed by the High Court in terms of the prayer made Pooja K. {5} 902-SA-614-2021 by the plaintif-respondent has to be confrmed.“ The Court further observed that “disputes as regards the location of boundary separating adjacent lands of diferent owners may arise under so many circumstances. One common instance is where portions of survey feld are transferred or allotted to diferent persons without mentioning either the side measurements or other necessary measurements to fx the geometrical shape of the plot at the spot. The area and location alone may have been shown in the transfer deed or the partition deed. Without changing the location, the area conveyed or allotted may be sought to be located in one or more alternative geometrical shape by one owner. Again, any one party may wish to have the limits of the area belonging to him demarcated so that he may either enclose the area to prevent trespass or to exercise acts of possession without encroaching into the neighbouring plot. If the other party on demand does not cooperate, a cause of action arises to have the limits of his property determined through court. Again the property conveyed or allotted may have been described only with reference to neighbouring properties. Those properties may or may not have been limited in extent and shape to a survey feld. In that case, a fxation of the boundary of those properties may be necessary to fx the boundaries of the properties conveyed or allotted. If there is no cooperation in doing that, that may result in a dispute. These instances are only illustrative and not exhaustive. All these disputes are disputes of a civil nature and they can form the subject matter of a suit under Section 9 CPC. There is no express or implied bar under any other law. According to me, whenever there is a dispute between two parties as regards the location of a boundary separating their neighbouring properties and if on a demand to cooperate in fxing that boundary it is not given a suit will lie at the instance of the demanding party. So I agree with my learned brother that the decision in Rayappan v. Yagappan – 1958 Ker LT 955 is not correct and has to be overruled.” 8. He has also relied upon the judgment of this Court bench at Pooja K. {6} 902-SA-614-2021 Nagapur in the case of Sulemankhan Mumtajkhan and Others
Legal Reasoning
Vs. Smt. Bhagirathibai Digamber Asalmol and Another reported in 2014(5) ALL MR 552 decided on 2nd April, 2014 and more particularly paragraph 9, which reads as under : In cases to determine encroachment, it is always desirable to have disputed suit property measured by competent surveyor to fnd out encroachment and its extent. Oral evidence cannot prove such contentious issue conclusively. In a suit where parties are disputing boundaries of property and one of the parties alleges encroachment made by another party to the suit inside suit property. In such case the plaint map as evidence in respect thereof is vital document for to decide real controversy between the parties fnally. This Court has time and again expressed opinion about the necessity of duly drawn measurement plan/map in any suit in which there is a boundary dispute. The Trial Court as well as 1st Appellate Court which are Court of Facts, are duty bound to ascertain that a map is drawn to the appropriate scale by competent Government ofcial from the ofce of TILR or DILR, as the case may be, so that measurement of suit property is carried out in presence of the parties after due notice to them or even if they are absent, so as to ensure that the suit property is properly measured, boundaries are fxed and boundary dispute is fnally settled by producing map in the Court by the plan maker who can prove its genuineness by deposing in support of such plan/map, if it is so necessary in the absence of admission for exhibiting the map. The Trial Court can certainly raise presumption of accuracy and genuineness of such map in view of Section 83 of the Evidence Act if map is drawn by competent authority. (See: Ram Kishore Sen & ors v. Union of India & ors reported in AIR 1966 SC 644) When such vital document is duly produced, proved and established, necessary detailed decree can be follow if there is any encroachment on the suit property. As held by this Court in Vijay Shende’s case, [2009(4) ALL MR 601] Pooja K. {7} 902-SA-614-2021 (supra), in such cases, fact of encroachment may be proved partly by oral evidence although the extent of encroachment cannot be proved in absence of public records without following due procedure emerging from Section 36 and Section 60 of the Evidence Act. In view of this recent judicial precedent referred to above, in the larger interest of justice, when it appears that the trial Court as well as 1st Appellate Court failed to follow proper procedure in this regard to ascertain the boundaries of the suit property. I must allow this appeal by setting aside impugned judgments and orders with direction to the trial Court concerned to consider appointment of court commissioner; who shall be competent ofcial from the Ofce of Taluka Inspector of Land Records and District Inspector of Land Records, as the case may be. The court commissioner, if required, shall secure copies of necessary public record relating to Gat/Survey number, subject matter of dispute for to settle boundaries of the suit property by carrying out measurement after due notice to the parties to the suit and also issuing notice to adjacent owners/ possessors to the suit property. He shall submit his written report to the trial Court together with detailed map. Learned trial Court after considering such written report may allow the parties to lead additional evidence if it deems it ft and shall pass order according to law. Parties shall appear before the trial Court on 28th April 2014. It is desirable that the trial Judge shall endeavour to get an agreed map on record and in the absence of such agreed map/plan can depend upon evidence obtained through the Court Commissioner as indicated above. 9. Both these judgments state that, there should be a joint measurement of disputed property. Therefore both these judgments are more applicable to the case in hand. As in the present case measurement of the suit land was done in the presence of both the parties so also measurement of adjacent Pooja K. lands and measurement of appellantss land was done. {8} 902-SA-614-2021 10. The cadesteral surveyor - Mr. Balaji Sayanna Mundlod in his cross-examination admitted that, he has taken measurement of survey No.542, survey No.543 and survey No.610/1, therefore, there is no much argument from either of the parties regarding non measurement of survey number. 11. I have gone through the judgments of the both the Courts below and I am of the view that, the measurement produced by the defendant (appellant) is not proper one and the said measurement was not carried out by following due process of law, wherein no notices were issued to the adjacent owners and more particularly to the plaintifs (respondents). Whereas the measurement map produced and duly proved by the plaintifs is proper one since the notices were issued to the adjacent land owners and so also to the defendant, who was present while measurement was done. It is also pertinent to note that, defendant has not examined any neighbourer of land survey No.610/1 therefore a defendant is trying to interfere and obstructing into peaceful possession of the plaintifss land survey No.542. 12. No case is made out. No substantial question arises in this Pooja K. Appeal, hence Appeal stands rejected. Pending Civil Applications {9} 902-SA-614-2021
Decision
are also disposed of. 13. At this stage learned Counsel for the appellant prays for stay of this order. 14. Learned Counsel for respondents opposes the request of learned Counsel for appellant. As there was no stay in the lower Courts or in this Court after fling of this appeal. Hence, request made by the learned Counsel for appellant is rejected. [ RAJESH S. PATIL ] JUDGE Pooja K.