Second Appeal No.80 of 1990

19th September, 2003

Petitioner Counsel: Mr. K. S. NARWADE
Respondent Counsel: Mr. A. M. BAPAT

Cases Cited:
Krishnarao Vs. Mahadeorao, 1953 N.L.J. Note 230 [Para 12]
Ram Kishore Sen Vs. Union of India, AIR 1966 SC 644 [Para 14]
E. Achuthan Nair Vs. P. Narayanan Nair, (1987)4 SCC 71 [Para 15]
Rayappan Vs. Yagappan, 1958 Ker LT 955 [Para 16]
Amiya Bala Paul Vs. Commissioner of Income Tax, 2003 AIR SCW 3319 [Para 18]

JUDGMENT

JUDGMENT :- By invoking the jurisdiction of this Court under section 100 of the Civil Procedure Code, this second appeal arises out of the judgment and decree passed by the Second Additional District Judge, Yavatmal on 28/9/1987 in Civil Appeal No.1 of 1984 who reversed the judgment and decree passed by the learned Civil Judge, Junior Division, Pusad on 14/11/1983 in Regular civil Suit No.121 of 1981. The Trial Court decreed the suit with cost and directed the respondent-defendant to deliver the possession of 10 R. land shown in the map (Exhs.25 & 44) to the petitioner-plaintiff, within on month and also to pay Rs.600/- to the appellant one account of damages for last three years and also directing the enquiry into the future mesne profits under Order XX, Rule 12 of the Code of Civil Procedure. This judgment and decree passed by the Trial Court has been reversed by the Appellate Court and dismissed the suit of the appellant.

2. Brief facts are as under:

The plaintiff is the owner of agricultural land bearing survey No.66/2 admeasuring 3.62 H.R. situated at village Vidul, Tq. Umerkhed, District Yavatmal which was purchased by him vide registered sale deed on 23/6/1975 and since then he is in possession. It is contended that the defendant also owns agricultural land which is situated on the Eastern side of the field of the plaintiff bearing survey No.67. The plaintiff got his land measured through the Cadastral Surveyor from the office of District Inspector of Land Records on 19/3/1981, who found that there was encroachment to the extent of 10 R. land made by the defendant. The defendant was called upon to deliver the possession of the land under encroachment, but in vain and hence the plaintiff was constrained to file the suit for possession of the area under encroachment.

3. The defendant combated the claim by filing his written statement and contended that the plaintiff is a big landlord of the village and he got his land measured unfairly and incorrectly through the Cadastral Surveyor and under coercion the signature of the defendant, who was minor at that time, was obtained by the measurer on the map though the defendant is in continuous possession without any obstruction since last 30 years and he became owner by virtue of adverse possession.

4. On the aforesaid pleadings, the trial court framed issues. On behalf of the plaintiff, four witnesses were examined whereas on behalf of the defendant, three witnesses were examined. The Trial Court considered the evidence adduced by the parties particularly the evidence of Cadastral Surveyors Uttamrao Naik (P.W.1) and Manik Ingale (D.W.2). The trial Court found that the plaintiff has proved that the defendant has made encroachment on the land of the plaintiff, and therefore, he granted decree for possession of the land under encroachment to the extent of 10 R. as shown in the measurement maps drawn by both the Cadastral Surveyors.

5. Being aggrieved by this judgment and decree, the defendant carried appeal to the Appellate Court. The learned 2nd Additional District Judge Yavatmal reversed the said judgment and decree and dismissed the suit. It is this judgment of the appellate Court which is under challenge in this appeal.

6. Mr. K. S. Narwade, the learned counsel for the appellant contended that the appellate Court has committed an error of law in not appreciating the evidence adduced on record. He further contended that the evidence of Cadastral Surveyor, Manik (D.W.2) clearly shows that the defendants made encroachment to the extent of 6 R land as shown in the map prepared by him. Mr. Narwade further contended that the encroachment to the extent of 10 R. has been duly proved through the evidence of Cadastral Surveyor Uttamrao (P.W.1) examined on behalf of the plaintiff. He further contended that there was no reason for the appellate Court to interfere into the finding of fact recorded by the trial Court regarding the encroachment which is said to have been committed by the defendant and this has resulted into the miscarriage of justice. However, he contended that in the interest of justice and for the just decision of the case, the matter may be remanded to the trial Court for appointment of Commissioner under Order 26, Rule 9 of the Code of Civil Procedure for taking joint measurements.

7. Mr. Bapat, the learned counsel for the defendant pointed out that the appellate Court has correctly appreciated the evidence in proper perspective and has arrived at the conclusion that the plaintiff has failed to prove the encroachment to the extent of 10 R. land and this finding of fact cannot be questioned in the second appeal. He further contended that the plaintiff has failed to establish his title to the portion of encroachment and the plaintiff has to stand on his own legs in order to get the decree for possession. He contended that the judgment and decree passed by the learned appellate Court is substantiable in law and the appellate Court was perfectly justified in reversing the decree passed by the trial Court as it was based on misappreciation of evidence on record. He contended that no substantial question of law arises in this appeal, and therefore, the same deserves to be dismissed.

8. I have carefully considered the contentions canvassed by the learned counsel for the parties. It may not be out of place to mention here that admittedly the plaintiff is the owner of agricultural land bearing survey No.66/2 admeasuring 3.62 H.R., by virtue of the registered sale deed dated 23/6/1975. It is also not disputed that the land being survey No.67 is owned by the defendant and is situated on the Eastern side of the land of the plaintiff. It is also not disputed that the land of the defendant bearing survey No.67, as per the revenue record is admeasuring 1.84 H.R. The learned counsel for the plaintiff pointed out that the Cadastral Surveyor Manik (D.W.2) admitted that the defendants have made encroachment to the extent of 0.6 H.R. However, it would appear from the evidence of Cadastral Surveyor Uttamrao (P.W.1) that the encroachment was to the extent of 0.10 H.R.

9. The defendant has taken a stand that he is in possession of his land continuously since last 30 years and therefore, he has become owner of the land under so-called encroachment by adverse possession. I do not think it necessary to go into the question of adverse possession. What is pertinent to note is that both the Cadastral Surveyors had prepared the measurement maps separately. In the measurement map drawn by the Cadastral Surveyor on behalf of the plaintiff, encroachment of 0.10 H.R. is shown whereas, in the map drawn by the Cadastral Surveyor on behalf of the defendant, the encroachment is shown to the extent of 0.6 H.R. Therefore, it is quite obvious that both the maps prepared by the Cadastral Surveyors cannot be admitted in evidence as per Section 83 of the Indian Evidence Act, 1872 (for short, the Evidence Act).

10. At this juncture it is necessary to reproduce Section 83 of the Evidence Act which contemplates that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate. (emphasis supplied).

11. The analysis of the aforesaid section would show that the words employed, "but maps or plans made for the purpose of any cause must be proved to be accurate" would clearly indicate that the maps or plans made for the purpose of any cause must be proved to be accurate and no presumption of law can be drawn that those maps or plans are accurate which are prepared at the instance of the parties for the purpose of the cause. The onus of proving that such a map is accurate lies on the party who produced it. The maps must be proved by the person who has prepared them. They are post litem motesa and lack necessary trustworthiness. Where the maps are made for the purpose of a suit there is, even apart from fraud which may exist, a tendency to colour, exaggerate and favour which can only be counteracted by swearing the maker to the truth of his plan. Hence, there is no presumption of accuracy in respect of the map or plan which is made for a particular cause and it goes without saying that a map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. In any case, in which there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and/or subsequent reference in the pleadings or judgment to place the mark on a map should be referred to this map which must be attached to the decree and signed by the Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case all over again. The map should be drawn with the North at the top and letters marking points should not be put in side ways or upside down.

12. I may usefully refer the decisions of our High Court in Civil Revision No.406 of 1952 decided on 28.1.1953 by the then Justice B. K. Choudhari in Krishnarao Vs. Mahadeorao (1953 N.L.J. Note 230 at page 72) wherein it has been observed as under :

"3. The trial Court rejected the application stating that the question of encroachment by the defendant on a particular date is to be proved by positive evidence by the plaintiff and, therefore, it did not think it desirable to appoint a commissioner. It is against this order that the plaintiff has come up in revision.

4. Order 26, Rule 9, of the Civil Procedure Code is as follows :

"In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court."

5. Under the above rule, the Court has a discretion to order local investigation or not. The object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. Cases of boundary disputes and disputes about the identity of lands are instances when a Court should order a local investigation under this rule. [Po Gyi Vs. Maung Paw & anr. (2 I.C. 347)]."

6. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the exact area encroached upon. Oral evidence cannot conclusively prove such an issue. The order of the lower Court refusing to appoint a commissioner amounted to a refusal to exercise jurisdiction. It is set aside. The plaintiff's application under Order 26, Rule 9, of the Civil Procedure Code, for appointment of Commissioner is allowed."

13. I am in respectful agreement with the view taken by this Court in the aforementioned case. It is clear that under Order 26, Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation or not. The object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. The cases of boundary dispute and disputes about the identity of lands are instances, when a Court should order a local investigation under Order 26, Rule 9 of the Code of Civil Procedure. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue.

14. However, reference may also be had to the decision of the Supreme Court in the case of Ram Kishore Sen & ors. Vs. Union of India - AIR 1966 SC 644 wherein it has been held in para 12 that, "it is true that Section 83 of the Evidence Act provides that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate, but the maps or plans made for the purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of the maps which satisfy the requirements prescribed by the first part of Section 83. Exh.A-1 obviously does not fall under the category of the said map and so there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr. Mukherjee has given us no satisfactory reasons for differing from the said conclusion."

15. Eventually, I may also usefully refer the another decision of the Apex Court in E. Achuthan Nair Vs. P. Narayanan Nair & 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 identification 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 justified 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 by the plaintiff-respondent has to be confirmed."

16. The Apex Court further observed that "disputes as regards the location of boundary separating adjacent lands of different owners may arise under so many circumstances. One common instance is where portions of survey field are transferred or allotted to different persons without mentioning either the side measurements or other necessary measurements to fix 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 co-operate, 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 field. In that case, a fixation of the boundary of those properties may be necessary to fix 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 of the Civil Procedure Code. 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 fixing 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 Vs. Yagappan - 1958 Ker LT 955 is not correct and has to be overruled."

17. It is necessary to reproduce relevant rules of Order 26 of the Code of Civil Procedure which read as under :

"9. Commission to make local investigations - In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

10. Procedure of Commissioner .- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit.- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person - Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

18. I need not multiply the authorities on this point and the recent dictum of the Apex Court in the case of Amiya Bala Paul Vs. Commissioner of Income Tax, 2003 AIR SCW 3319 usefully can be applied to the present case wherein it is held that;

"12. Learned counsel for the respondents has however particularly drawn our attention to clause (d) of sub-section 131 which provides inter alia that the assessing officer shall, "for the purposes of this Act, have the same powers as are vested in a Court under a Code of Civil Procedure, 1908, (referred to as 'the Code') when trying a suit in respect of the following matters, namely :-

"(d) issuing commissions."

13. The Court's power to issue commissions is contained in Sections 75 to 78 of the body of the Code and Order XXVI of the Schedule to the Code. Section 76 to 78 are not relevant for our purposes. Section 75 which delineates the power of Court to issue commission says:

"Power of Court to issue commissions. Subject to such conditions and limitations as may be prescribed, the Court may issue a commission-

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts;

or

(d) to make a partition;

(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act."

14. Order XXIV provides for the procedure for issuing commission in respect of each of the purposes mentioned in Sections 75. Thus Rules 1 to 8 are in respect of commissions to examine witnesses, Rules 9 to 10 C are in respect of commission for local investigations; Rules 11 and 12 relate to commissions to examine accounts and Rules 13 and 14 pertain to commission to make partitions, if at all the Assessing Officer could have issued a commission to a Valuation Officer it could only be under Rule 9 which lays down that :

"Commission to make local investigations. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

15. Assuming that the Valuation Officer was appointed in terms of Order XXVI, Rule 9, it is not clear whether the report submitted by the Valuation Officer was in keeping with Rule 10, sub-section (1) which requires the Commissioner not only to hold "such local inspection as he deems necessary" but also to reduce in writing the evidence taken by him and to return such evidence together with his report in writing signed by him to the Court. If this were done then the report of the Commissioner and the evidence taken by him "shall be evidence in the suit and shall form part of the record". However the Court and any of the parties to the suit, with the permission of the Court, may examine the Commissioner personally "touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation".

Bare reading of the aforesaid provision of law would reveal that the Commissioner can be appointed under Order 26, Rule 9, C.P.C. and the Commissioner has not only to take the joint measurements but is required by law to prepare a report and submit it to the Court which can be read in evidence as per sub-clause (2) of the Rule 10 of Order 26, C.P.C.

20. In view of this legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and the defendant for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure not only becomes relevant but appears to be absolutely essential for the just decision of the case.

21. In the present case, such exercise has not been done. What is done is that, the plaintiff has got measured his land for the purpose of the cause through the Cadastral Surveyor and thereafter the defendant also has got done the measurement of his land through the Cadastral Surveyor from the same office of the D.I.L.R., but at a different point of time and the evidence of both Cadastral Surveyors is not consistent with each other. The Cadastral Surveyor examined by the plaintiff says that the encroachment is to the extent of 10 R. whereas the Cadastral Surveyor examined by the defendant says that the encroachment is to the extent of 6 R. In Such situation, it appears to be absolutely necessary to appoint the Commissioner i.e Cadastral Surveyor to take joint measurements of the lands owned by the respective parties, bearing land survey No.66/2 which is owned by the plaintiff and Survey No.67 which is owned by the defendant.

22. In view of this situation, I am of the considered view that the trial Court has committed in error of law by placing reliance on the inaccurate maps prepared by the Cadastral Surveyors and the Appellate Court has committed error of law by losing sight of the law position resulting into miscarriage of justice. Therefore, I am of the considered opinion that the matter deserves to be remanded to the trial Court for fresh decision according to law. The Trial Court shall appoint Commissioner as per Order XXVI, Rule 9 of the Civil Procedure Code at the cost to be equally shared by the parties, in view of the observations mentioned above in this judgment, and shall give opportunity to both the sides to adduce evidence upon the issue of encroachment. The Commissioner, i.e. Cadastral Surveyor from the office of Taluka Inspector of Land Records (T.I.L.R.) or District Inspector of Land Records (D.I.L.R.) shall carry out the joint measurements in the sense that he shall take measurement of the lands owned by the respective parties as well as he shall demarcate the boundaries of those lands and shall prepare the map by showing the actual measurements of the lands in the map itself by also showing the precise and concise encroachment, if any, and then shall submit his report and the map to the trial Court.

23. Thus, the matter is remanded to the trial Court in the light of observations mentioned above. The impugned judgment and decree is set aside. Record and proceedings be sent back to the trial Court immediately, without any delay. The parties are directed to appear before the trial Court within a month. The Trial Court shall dispose of the suit expeditiously, as far as possible within three months.

24. In the result, the appeal is allowed, but in the circumstances the costs shall be costs in the cause.

C.C. expedited.

Appeal allowed.