Second Appeal No.661 of 1990

28th April, 2004

Petitioner Counsel: Mrs. VASANTI NAIK
Respondent Counsel: Mr. A. S. MARDIKAR

Cases Cited:
Ganesh Hota Vs. Purushottam, AIR 1961 ORISSA 97 [Para 6]
Ramaswamy Kalingaryar Vs. Mathayan Padayachi, AIR 1992 SC 115 [Para 7,15]
Chandrabhan Vs. Pamma Bai, (2002)9 SCC 565 [Para 7,15]
Veerayee Ammmal Vs. Seeni Ammal, 2002(1) ALL MR 264 (S.C.)=(2002)1 SCC 134 [Para 8]
Ramchandra Bhikaji Jagtap Vs. Dudharam Langruji Padvekar, 2003(4) ALL MR 990 [Para 13]
Civil Revision No.406 of 1952, Dt.28-1-1953 [Para 13]
Krishnarao Vs. Mahadeorao, 1953 N.L.J. Note 230 [Para 13]

JUDGMENT

JUDGMENT :- By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the unsuccessful original plaintiff has filed this second appeal against the judgment dated 21/10/1989 passed by the learned Additional District Judge in Regular Civil Appeal No.113 of 1985 whereby the appeal came to be dismissed and the judgment and decree dated 9/1/1985 passed by the learned Joint Civil Judge, Junior Division was confirmed dismissing the suit of the plaintiff seeking relief of possession of the land shown by letters B,C,D,M and L,E,J,K in the map annexed with the plaint.

2. Brief facts are required to be stated as under. :

The plaintiff claimed to be the owner of Nazul plot No.7 in Sheet No.55-B in Ambapeth, Amravati which has been purchased by her as per the registered sale deed dated 28/6/1977 from the vendor Abdul Samad s/o Majid Khan admeasuring 1322 sq.ft. It is contended that on or before 28/6/1977 the defendants wrongfully obtained the possession of the land shown by the letters BCDM and LEJK in the map annexed with the plaint and therefore, they were served with notice calling upon them for removal of the said encroachment, but in vain. It is contended that the boundary described in the sale deed is sufficient to establish that the defendants have made encroachment on the portion of land and therefore, filed the suit for possession of the land under encroachment.

3. The defendants strongly resisted the claim of the plaintiff by filing their written statement and contended that the defendant No.1 has purchased the plot No.8 as well as half of the portion of plot No.7 from Surajubai Ghashiram Joshi along with 9 houses standing thereon by registered sale deed dated 29/10/1973 and the houses have been described as house Nos.560 to 568 in the Municipal record. She further contended that Surjubai purchased this property from Kalsabai w/o Daulatkhan by virtue of registered sale deed dated 20/7/1970 and Kalsabai purchased it from one Chotibee by registered sale deed dated 27/2/1969. It is contended that Chotibee died on 27/3/1970 and she was the original owner of plot Nos.7 and 8. It is contended that the defendants did not make any encroachment on the land owned by the plaintiff and the suit is liable to be dismissed.

4. On the aforesaid pleadings, the trial Court framed several issues. The plaintiff relied on the map (Exh.51) which is said to have been proved through the evidence of Hanshraj (P.W.1) and Narayan (P.W.3), who is one of the occupants of some portion of the land out of plot No.8 and he has purchased that portion of land from Abdul Samad by registered sale deed (Exh.52). On behalf of defendants, Narayan Gupta, the scribe of sale deed (Exh.83), Wamanrao Kutaase who scribed the sale deed (Exh.81) and Chatrapati Pandhare, attesting witness of the sale deed dated 29/10/1977 between Sarjubai Joshi and Pramilabai Zade and Ashok Hussain, attesting witness of sale deed (Exh.93), were examined.

5. The trial Court on considering the evidence adduced by the parties, recorded the finding that the plaintiff has failed to establish her title to the nazul plot No.7, sheet No.55-B, area 2291 sq.ft. including temporary structures standing thereon and that the defendants did not make any encroachment on the land of the plaintiff much less shown by the letters LEJK shown in the map annexed with the plaint. Consistent with these findings, the trial Court dismissed the suit. The plaintiff being aggrieved by the judgment and decree passed by the trial Court, carried appeal to the District Court. The learned Additional District Judge on hearing the learned counsel for the parties, dismissed the appeal on 21/10/1989. This judgment of the appellate Court is under challenge in this second appeal.

6. The learned counsel for the plaintiff contended that the plaintiff has purchased the plot No.7 admeasuring 1322 sq.ft. as per the sale deed Exh.53 from one Abdul Samad and that she is in possession of that portion of the house but the defendants have made encroachment on the said land and the encroachment has been shown in the plaint map by letters BCDM and LEJK. She contended that this map was drawn by one Wate, retired person working as Surveyor in the Land Records who took the measurements and drew the plaint map and the said map has been duly proved through the evidence of Hanshraj Shaha because said Surveyor Wate is no more alive. She contended that even the appellate Court held that the map (Exh.51) is duly proved by the plaintiff and in such circumstances, the appellate Court has committed an error in not granting decree for possession of the land under encroachment which is shown by letter BCDM and LEJK in the said map. She contended that the defendants did not establish their title to the portion under encroachment and the sale deeds on which reliance is placed by them do not show that this portion of the land shown by letters BCDM and LEJK in the map is owned by them. She further contended that since the defendants have failed to establish their title to the portion of the land under encroachment, the plaintiff would be entitled to get the possession of the same portion and in such situation, the impugned judgments of the Courts below cannot be sustained in law. She contended that the boundaries of the property purchased by the plaintiff have been shown in the sale deed dated 28/6/1977 by which the plaintiff has purchased plot No.7 and therefore, it is not necessary to establish as to what is the area of the said plot. She contended that operative portion in the document of sale deed has to be taken into consideration and therefore, the appellate Court has misconstrued the contents of the sale deed and refused to grant decree for possession of the land under encroachment and as such this is the substantial question of law which arises for consideration. In support of these contentions, she relied on the decision of the Orissa High Court in the case of Ganesh Hota Vs. Purushottam, AIR 1961 ORISSA 97.

7. Mr. Mardikar, the learned counsel for the defendants contended that the plaintiff has failed to establish the alleged encroachment said to have been made as shown by letter BCDM and LEJK in the map. He contended that the plaintiff though contended that she has purchased the plot No.7 from Abdul Samad, the name of the vendor who sold the plot No.7 to Abdul Samad, is not known. He contended that the defendant No.1 has purchased plot No.8 by virtue of the sale deed (Exh.81) on 29/10/1973 admeasuring 1320 sq.ft. and she has also produced the sale deed dated 20/7/1970 and 20/2/1969 by which her predecessor in title had purchased the said plot No.8 from the original owner Chhotibi. He contended that the plaintiff did not establish her title to nazul plot No.7, sheet No.5-B admeasuring 1291 sq.ft. including the structures standing thereon and therefore, both the Courts were perfectly justified in coming to the conclusion that the encroachment as shown by letter BCDM and LEJK in the plaint map has not been duly proved. He contended that the City Survey record is available, but the plaintiff did not produce any extract of the property register card to show that plot No.7 has been purchased having an area of 1291 sq.ft. He contended that no substantial question of law arises in this appeal and the concurrent findings recorded by both the Courts below is not liable to be upset in this second appeal. In support of these submissions, he relied on the decision of the Supreme Court in the case of Ramaswamy Kalingaryar Vs. Mathayan Padayachi, AIR 1992 SC 115 and another decision in the case of Chandrabhan Vs. Pamma Bai, (2002)9 SCC 565.

8. Mr. Mardikar further contended that the evidence cannot be re-appreciated at the stage of second appeal and the High Court cannot assume jurisdiction to interfere into the concurrent findings recorded by the Courts below, just because another view is available on appreciation of evidence. In support of these submissions he relied on the decision of the Supreme Court in the case of Veerayee Ammmal Vs. Seeni Ammal, (2002)1 SCC 134 : [2002(1) ALL MR 264 (S.C.)].

9. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. In order to prove the title to the plot No.7, the plaintiff relied on the registered sale deed dated 28/6/1977 wherein the recitals would show that one Abdul Sammed Khan s/o Majid Khan sold plot No.7 admeasuring 1291 sq.ft. to the plaintiff and it is mentioned that the said land was inherited by Bijanbi w/o Abbasali from her mother. The extract of the revenue record would show that Bijanbi had inherited the said land from her mother. Whereas, the defendants relied on the sale deed dated 29/10/1973 (Exh.31) and the photo stat copy of the sale deed would show that plot No.8 admeasuring 1320 sq.ft. situated in municipal ward No.26 on which 9 houses bearing Nos.560 to 568 were standing have been sold to the defendant No.1. Similarly, the sale deeds dated 20/7/1970 and 20/2/1969 would show that the predecessor in title of defendant No.1 had purchased the same plot No.1 admeasuring 1320 sq.ft. from the original owner Chhotibi.

10. Be that as it may, in order to show the encroachment, reliance is placed on the map (Exh.51) which is said to have been drawn by Mr. Wate who was working as Surveyor in the Land Records and he was no more alive when the evidence was recorded by the trial Court and therefore, this map is said to have been duly proved through the evidence of Hanshraj Shaha (P.W.1), who is father of the plaintiff Niranjan Shaha. This witness admitted in his cross-examination that; "It is true that this Wate was drawing sketch, he first took the measurements and drew the map and thereafter on the next day he gave me the said map (Exh.51)".

11. This admission of the plaintiff's witness would clearly show that the Surveyor Wate took the measurements and drew the map. Perusal of the map would show that actually the measurements of the plot Nos.7 and 8 have not been noted down in the map nor the size of the property owned by the respective parties has been shown anywhere. The map would only reveal that the site denoted by letters ABCDEFGHI belongs to the occupant and site shown by letters BCDM admeasuring 310 sq.ft. is an encroachment made by Shri. Zade by keeping wooden materials such as bamboos and fatas, etc. and the site shown in the blue colour and denoted by letters LEFJK admeasuring 115 sq.ft. is unauthorisedly occupied by Shri. Zade by keeping a tenant Shri.Chawan and the site shown in yellow colour and denoted by letters KJFGHI is occupied by Shri. Bhagubhai, a tenant of occupier.

12. At this juncture, it is necessary to reproduce Section 83 of the Indian Evidence Act, 1872 which lays down that; the Court shall presume that 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 purposes of any cause must be proved to be accurate.

13. This Court, in the case of Ramchandra Bhikaji Jagtap Vs. Dudharam Langruji Padvekar, 2003(4) ALL MR 990 observed in para Nos.8, 9 and 10 as under.:

" 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 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 map, the decree is probably meaningless and execution means virtually starting the case all over again. The map should be dawn with the North at the top and letters marking points should not be put in side ways or upside down.

I may usefully refer the decision of our High Court in Civil Revision No.406 of 1952 decided on 28/1/1953 by Justice B. K. Choudhari (as he then was) 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 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 investigation is not so much to collect evidence which can to 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. c.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".

"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 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 disputes 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. It is pertinent to note in the present case that the map drawn by the Surveyor Mr. Wate cannot be made admissible in evidence under Section 83 of the Evidence Act to show that the defendants have made encroachment on the land of the plaintiff because the Surveyor did not carry out joint measurements of plot Nos.7 and 8 by taking into consideration the entries recorded in the property register maintained at the office of City Surveyor together with the title deeds of the parties on which reliance was placed. Chotibi was not the owner of the entire layout of the land in which various plots including plot Nos.7 & 8 were drawn. One does not know whether the said layout is sanctioned by the competent authority and that each plot was demarcated by fixing the permanent boundaries of the respective plots. Sanctioned map of the layout has not been produced on record. The joint measurement was not carried out by the Surveyor and either party also did not move the trial Court for appointment of Commissioner, i.e. the City Surveyor under Order 26, Rule 9 of the Code of Civil Procedure and it is in these circumstances it is difficult to say that the map is an accurate map.

15. Though both the Courts below have recorded concurrent findings that no encroachment has been made by the defendants on the land of the plaintiff and though the appellate Court held that the map relied on by the plaintiff is proved, it follows that the impugned judgment has resulted in to the miscarriage of justice because the Courts below did not take in to consideration as to whether the map was an accurate map and was admissible in evidence. In such situation, the contentions of the learned counsel for the defendants that no interference into the concurrent findings recorded by both the Courts below is warranted, cannot be accepted and the authorities i.e. the decisions of the Supreme Court in the case of Ramaswamy Kalingaryar Vs. Mathayan Padayachi, AIR 1992 SC 115 and in the case of Chandrabhan Vs. Pamma Bai, (2002)9 SCC 565 would obviously have no bearing on the facts and circumstances of the present case. Similarly, though the operative portion of the documents would be a relevant consideration for construing a document, in the present case it would reveal that simply because the description of the properties owned by the respective parties has been mentioned in the sale deeds, it did not follow that the encroachment which is said to have been made by the defendants has been established and in such situation, the decision in the case of Ganesh Hota Vs. Purushottam, AIR 1961 ORISSA 97 on which reliance is placed by the learned counsel for the plaintiff would not be applicable to the facts and circumstances of the present case.

16. On close scrutiny, it is clear that the impugned judgment cannot be sustained in law and this is a fit case which deserves to be remanded to the trial Court for appointment of the Commissioner, i.e. the City Surveyor under Order 26 Rule 9 of the Code of Civil Procedure in the light of the observations mentioned in this judgment. The Commissioner, i.e. the City Surveyor from the office of City Survey is supposed to carry out the joint measurements of both the plots, i.e. plot Nos.7 and 8 and if necessary of the entire layout after taking into consideration not only the title deeds of the parties but also the entries recorded in the property register and the map maintained at the office of the City Survey and then the City Surveyor is expected to prepare the map in the light of the observations mentioned above in this judgment. The City Surveyor shall be appointed as a Commissioner on the application of the plaintiff by the trial Court and the plaintiff is directed to file the said application within a period of four weeks from today and in case the plaintiff fails to file such application in the trial Court, the suit shall stand dismissed. If the City Surveyor is appointed for taking the joint measurements of the properties owned by the respective parties, the trial Court shall take into consideration the joint measurement map along with report submitted by the Commissioner and shall decide the suit in the light of the observations mentioned above in this judgment. The appeal is allowed and the impugned judgment and decree passed by both the Courts below are set aside and the suit is remanded to the trial Court for fresh decision according to law in the light of the observations mentioned above. The trial Court is expected to decide the suit expeditiously and at any rate within six months from the date of receipt of the record and proceedings of this case. The record and proceedings be sent back to the trial Court immediately, without any delay. Costs shall be costs in the cause.

Appeal allowed.