High Court

Legal Reasoning

..1.. 906-ao-3-23,J.IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCHAT AURANGABAD906 APPEAL FROM ORDER NO. 03 OF 20231. Amolkumar s/o Navinchand PatniAge : 30 years, Occupation : Business,R/o . Thakare Nagar, Behind Deogiri Bank,Aurangabad – 4310072.Komalkumar s/o Navinchand Patni,Age : 31 years, Occupation : Business,R/o . Thakare Nagar, Behind Deogiri Bank,Aurangabad – 431007.3.Shobhabai w/o Navinchand Patni,Age : 62 years, Occupation : Household,R/o . Thakare Nagar, Behind Deogiri Bank,Aurangabad – 431007 ...APPELLANTS (Original Defendants)VERSUSShankar s/o Dashrath Navpute,Age : 53 years, Occupation : Agriculture,R/o. Chikalthana, Taluka &District Aurangabad – 431007. ...RESPONDENT ( Original Plaintiff )…Advocate for Appellants : Mr. Swapnil S. PatilAdvocate for Respondent : Mr. Swapnil B. Patel ...CORAM : S. G. MEHARE, J.DATE :07.12.2023ORAL JUDGMENT :- 1.Heard the respective learned counsels. ..2.. 906-ao-3-23,J.2.The appellants are the original defendants, and therespondent was the original plaintiff. The plaintiff had filed asuit for removal of encroachment, possession and injunction.He relied on the cadastral surveyor measurement report butdid not examine the cadastral surveyor. The learned Court ofthe first instance held that the plaintiff failed to show that thedefendants had encroached upon the disputed portion of theland. He also observed that the existence of the so-called riverwas also not reflected in the measurement report. The learnedCourt of the first instance had dismissed the appeal.3.The plaintiff had preferred the appeal before the firstappellate Court. The First Appellate Court held that there wasa disagreement on the map placed on record. The Court of thefirst instance held in beginning the cadastral surveyormeasurement map without examining the cadastral surveyorgrant on the pronouncement. The Court held that the learnedCourt of first instance did not consider the controversybetween the parties in the correct perspective. He also heldthat the appointment of the Cadastral surveyor for jointmeasurement is essential. He remitted the appeal to the trialCourt. Against the judgment and decree of the first appellate ..3.. 906-ao-3-23,J.Court passed in Regular Civil Appeal No. 100/2021 dated19.11.2022, the defendants are before this Court.4.This Court (Coram : Gauri Godse, J.) framed thefollowing substantial questions of law :"(1)Whether the first appellate Court is right inremanding the matter for fresh trial by settingaside the decree of the trial court for re-trial forthe purpose of appointment of court commissionerfor survey and measurement of the suit land,without framing any point of consideration withrespect to the title of the suit property?(2) Whether the order of remand passed by thefirst appellate Court, thereby setting aside thedismissal of the suit without considering the pointof the title of the plaintiff, though there was adispute with respect to the title and the same wasdecided by the trial court?"5.The learned counsel for the appellants submits that theFirst Appellate Court did not frame the points fordetermination. Therefore, the impugned judgment and decreeis erroneous. Under Order 41 Rule 31 of the Code of CivilProcedure, the First Appellate Court has to frame the points fordetermination. ..4.. 906-ao-3-23,J.6.Per contra, the learned counsel for the respondentsubmits that the First Appellate Court has specifically framedthe point that, "Did the plaintiff prove the defendant had madeencroachment on the suit land? This was the material issuethat covered the issue of the plaintiff's title. He also argued thatthe defendants never denied the title of the plaintiff of gut no.261. Therefore, no specific point was required to bedetermined. The suit of the plaintiff itself was on the basis ofthe title, and the issue of the title was not before the trialCourt. The plaintiff has claimed that the suit land was hisancestral property. The sale deed of the suit land was beforethe Court. 7.The plaintiff filed a sale deed (Exhibit 37). It wasstanding in the name of his father. The learned Court of thefirst instance referred to the recitals of the sale deed andrecorded findings that the recitals of the sale deed do notdisclose that the land purchased by the plaintiff's father doesnot include 40 R of the land on which the encroachment wasmade. However, the First Appellate Court categoricallyconsidered this issue and it was reproduced by the learned trialCourt of first instance. However, he did not comprehensively ..5.. 906-ao-3-23,J.record the finding whether the plaintiff prima facie had provedthat he had a title over the land allegedly encroached upon bythe defendants. The Court of first instance recorded the findingthat it is a settled preposition of law that in any case in whichthere is a dispute about encroachment or dimension of theside, the essential thing is to get an agreed map. If the partiescannot agree, a Court Commissioner must be appointed toprepare the same and subsequent reference in the pleading orjudgment placed with a map should be referred to this map,which must be attached to the decree and signed by the judge.The learned counsel for the appellants relied on the case ofOmprakash, Gulabchand Bajoria Vs. Ramesh Ramnivas Soni,Sheikh Malang, Sheikh Husain Laws (Bom)-2003-8-43 of thisCourt dated 20.08.2003. They also relied upon another caseunder the pronouncement of this Court passed in the case ofVijay Shende Vs. The State of Maharashtra, 2009(5) Mh.L.J.279.8. Perusal of the judgment of the trial Court shows that theissues on the title were not framed, but the learned Court offirst instance recorded the finding without framing issues, i. e.,whether the plaintiff is the owner of land encroached upon bythe defendants. The case revolves around the encroachment. ..6.. 906-ao-3-23,J.The law is well settled that in such cases, the best solution is toappoint a Cadastral surveyor as a court commissioner underOrder 26 Rule 9 of the Code of Civil Procedure for the jointmeasurement of the lands of the persons involved in the suit.9.Since there was no specific issue framed in the suit aboutthe title, the First Appellate Court has no reason to deal withthe same.10.The law is settled that nobody should suffer for thewrongs of others. The measurement map is always put inquestion by the opposite side. Even after having manypronouncements of this Court, the litigants do not apply to theCadastral surveyor for joint measurement, nor the office of theSuperintendent of Land Records department is taking note thatin case of an application for determining the encroachment hasbeen filed, he should have taken the joint measurement of theperson is concerned. It has created a mess and given rise tomany litigations and failures of litigation due to the faultyprocedure adopted by the said department. No person shouldsuffer only for the mistakes committed by the cadastralsurveyor. For an agriculturist, the land is the only source ofincome, and the land is everything for him. No one should ..7.. 906-ao-3-23,J.violate the rights of others by committing the illegalities forsetting right such illegalities. Even in this case, the learnedCourt of first instance, without the evidence of the Cadastralsurveyor's map, read the map and recorded the finding.Therefore, the learned Court of first instance appears to havecorrectly recorded the finding on this point. The encroachmentis to be identified by appointing the Cadastral surveyor.Therefore, by order of remand, the defendants would definitelynot suffer any loss. The truth should come out to find out whois at fault; the defendants may also benefit. If the jointmeasurement of the suit lands is done.11.The Court did not find any infirmities in the impugnedjudgment and decree. Hence, the substantial questions of lawhave been answered that the First Appellate Court has rightlyremanded the matter for a fresh trial, and the remand of theFirst Appellate Court is not bad without considering the pointof the title of the plaintiff as it was not the issue before the trialCourt.12.In view of the above discussion, the following order ispassed : ..8.. 906-ao-3-23,J.ORDER(i)The appeal stands dismissed.(ii)No order as to costs.(iii)Both parties are to appear before the First AppellateCourt at first instance on 15.01.2024.(iv)Record and Proceedings be returned to the learned Courtof first instance.(v)It is clarified that all the points are kept open. (S. G. MEHARE, J.)...shp/-