2014(3) ALL MR 635
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A.P. BHANGALE, J.

Shri Bhupendra s/o. Bhagwat Turkar Vs. Shri Homraj s/o. Zituji Meshram

Second Appeal No. 220 of 2013

10th January, 2014

Petitioner Counsel: Shri A.M. GHARE
Respondent Counsel: Shri R.M. PANDE

Civil P.C. (1908), O.26 R.9 - Appointment of Court Commissioner - Boundary and area dispute - Suit for possession of land allegedly encroached by defendant - Defendant objected to the appointment of Court Commissioner on ground that such appointment is not permissible for collecting evidence of disputed factum of possession - Held, cases of boundary disputes are clearly distinguishable in which identity of land, its measurement and area is needed to be considered on basis of authentic evidence and map of land - Where parties do not agree on map or plan, Court Commissioner can be appointed to prepare the map of suit property to assist the court - In such cases, there is no question of collecting evidence as to possession - In absence of map or plan, even if decree is passed, it would be meaningless as it may remain inexecutable in absence of authentic map - Proceeding remanded back to trial court to appoint Court Commissioner and decide the suit afresh. 2001(1) ALL MR 653, 2012(1) ALL MR 80, 2011(1) ALL MR 608 Disting. (Para 7)

Cases Cited:
Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare, 2001(1) ALL MR 653=2001(2) Mh. L. J. 959 [Para 5]
Syed Mushtaque Ahmad Vs. Syed Ashique Ali Khan, 2012(1) ALL MR 80=2011(6) Mh.L.J. 334 [Para 5]
Nalubai Narayan Shinde and ors. Vs. Gopinath Dagdu Shinde, 2011(1) ALL MR 608=2011(2) Mh.L.J. 991 [Para 5]
Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar, 2010(2) ALL MR 694=2010(3) Mh. L. J. 956 [Para 6]
Ram Kishore Sen and ors Vs. Union of India and ors., AIR 1966 SC 644 [Para 6]
Ushabai Sharadchandra Vs. Wasudeo and ors., 2004(2) Mh.L.J. 594 [Para 6]
Vachhalabai w/o Kundlik Gavane and ors. Vs. Chinkaji s/o. Malhari Jadhav and ors., 2012(3) ALL MR 91=2012(4) Mh. L.J. 198 [Para 6]


JUDGMENT

JUDGMENT :- Heard.

Admit the appeal on following substantial question of law.

Whether the courts below erred in law by not appointing the Court Commissioner considering the said dispute of boundary of the suit land and alleged encroachment over portion of the suit land ?

2. This appeal challenged the judgment and order dated 20-11-2012 in Regular Civil Appeal No. 24/2012 which came to be dismissed by learned Principal District Judge, Gondia. The appeal arose out of Regular Civil Suit No. 120/2007 in a suit for prohibitory and mandatory injunction which was dismissed by learned Joint Civil Judge, Junior Division, Gondia. The plaintiff had also claimed possession of the portion of suit land encroached upon by the defendant.

3. Facts briefly appeared from record are as under.

The unsuccessful plaintiff (present appellant) claimed as owner of plot nos 3 and 4, Khasara No. 58/9, 59/9, admeasuring 2400 sq.ft. bearing Thak No. 76 situated at Mouza Gondia. According to appellant/ plaintiff, he was serving in Chhindwara at Madhya Pradesh and was unable to look after the suit property and for that purpose, he was requested one Puranlal Turkar. It was the case of the plaintiff that defendant Shri Homraj Zituji Meshram, who resided in the same locality at Gondia where suit property is situated, took disadvantage of the absence of plaintiff/appellant and made encroachment upon part of the suit property. Earlier also, defendant had made attempt to encroach, that being so, suit for prohibitory and mandatory injunction had to be filed by the appellant/plaintiff. The plaint was amended to incorporate prayer for possession of encroached portion of the suit property, which was encroached by the defendant. The plaintiff in order to get the suit land measured by Taluka Inspector of Land Records moved accordingly on 16-5-2006. Meanwhile, plaintiff/appellant came to know from his appointed attorney that defendant has started construction work in the suit plot on or about 1-9-2007. The plaintiff had requested the defendant to stop the work but defendant refused and had illegally occupied portion of the suit property to the extent of 60ft. x 20 ft. by making unlawful construction etc. Under these circumstances, the relief of possession of the encroached portion of the suit property was sought along with prayer for prohibitory and mandatory injunction against defendant. Learned trial judge on the premise that the plaintiff failed to prove his case of alleged encroachment and on the ground that there was order in R.C.S. No. 8/2004 between the said parties and suit was withdrawn and ownership of the plaintiff and possession of the plaintiff was fact in issue in the earlier suit, viz. R.C.S. 8/2004, proceeded to dismiss R.C.S. No. 120/2007. Learned first appellate Judge confirmed the dismissal of the suit by the impugned judgment and order.

4. The grievance of the learned advocate for appellant is that in such cases of boundary and area dispute, the trial court could have recorded the finding of fact as to the extent of encroachment proved by the plaintiff in respect of portion of the suit property, but learned trial judge failed to exercise jurisdiction vested in him by not directing measurement of the suit property through Court Commissioner. Learned trial judge could have considered the evidence of the map, Exh 95, drawn upon by cadastral surveyor, Ratiram Raut in the present case, that was not done. According to the learned advocate for the appellant, trial court could have determined the extent of alleged fact of encroachment over the suit property by directing the expert concerned or public official concerned to get the suit land measured in order to find out the exact area encroached upon by the defendant over the suit property. As in such cases, oral evidence cannot conclusive prove the fact in issue. It is contended that provision under Order XXVI Rule 9 of the Code of Civil Procedure could have been invoked by the learned Judge in the larger interest of justice to determine the real controversy between the parties finally and effectively. According to learned advocate for the appellant at least trial court could have believed cadastral surveyor, who as public official deposed in the case as an witness in respect of the map drawn by him.

5. Learned advocate for the respondent on the other hand submitted that provisions of law under Order XXVI Rule 9 could not have been utilized in order to collect evidence by the court. He made reference to the ruling in case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare [2001(2) Mh. L. J. 959] : [2001(1) ALL MR 653]. Single Judge of this court held that if court appoints Court Commissioner to visit and inspect the spot (suit field) and submit report regarding actual possession of the suit filed, it would be tantamount to appoint Court Commissioner to collect evidence regarding possession and therefore Court Commissioner cannot be appointed to record finding as to possession. In Syed Mushtaque Ahmad Vs. Syed Ashique Ali Khan [2011(6) Mh.L.J. 334] : [2012(1) ALL MR 80], Single Bench of this court again made identical observations on the premise that Commissioner cannot be directed to find out aspect of possession and the extent of construction made by the respondent to enable the plaintiff to collect evidence. In another ruling Nalubai Narayan Shinde and ors. Vs. Gopinath Dagdu Shinde [2011(2) Mh.L.J. 991] : [2011(1) ALL MR 608], Single Judge of this court again stated that Commissioner cannot be appointed to find out as to who is in possession of the suit field/suit premises. Crux of these rulings is that court would not assist the plaintiff in order to prove his case or to record finding as to who is in possession of the suit land.

6. Learned advocate for the appellant submitted that these cases cited by the learned advocate for the respondent are distinguishable. In present case, where the plaintiff is seeking to protect his property on the strength of ownership and in a case, where documentary evidence is in the form of sale deed in respect of suit property indicating prima facie ownership and possession of the plaintiff and he alleges encroachment over the suit property and seeks possession of the encroached portion from the defendant who may have taken law into his hands, in such exceptional cases, where real controversy between parties is in the nature to determine the boundary dispute or fix identity of the suit land, the court is duty bound to insist upon the parties to file accurate map in respect of the suit property. My attention is invited to the ruling in Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar [2010(3) Mh. L. J. 956] : [2010(2) ALL MR 694] in which this court considered earlier judicial precedents including Ram Kishore Sen and ors Vs. Union of India and ors. [AIR 1966 SC 644] and observations made by the Hon'ble Supreme Court of India in paragraph 11 and 12 thereof. Judicial precedents in Ushabai Sharadchandra Vs. Wasudeo and ors. [2004(2) Mh.L.J. 594] and Vachhalabai w/o Kundlik Gavane and ors. Vs. Chinkaji s/o Malhari Jadhav and ors. [2012(4) Mh. L.J. 198] : [2012(3) ALL MR 91] are also cited in order to submit that trial court in such cases of boundary dispute can appoint public official like Taluka Inspector of Land Records/ District Inspector of Land Records by invoking power under Order XXVI, Rule 9 of Code of Civil Procedure so that evidence of the Commissioner in the form of report submitted by public official concerned regarding measurement of the suit land is considered for to decide the real controversy between the parties regarding boundary of the suit property or land on the basis of authenticated evidence instead of technically dismissing the suit on the ground that there was no oral evidence in such cases.

7. Normally, it is true that the court of law would not exercise its discretion for to assist the plaintiff to prove fact as to who is in possession if it is a disputed fact. However, the cases of boundary dispute are clearly distinguishable in which the identity of land, measurement thereof and area of the land is needed to be considered preferably on the basis of the authentic evidence and map of the land drawn by competent public official on behalf of the Central or State Government, the trial court is benefited by such map of the land authentically drawn and produced in order to decide the suit correctly, effectively and finally in the larger interest of justice so that no such dispute shall remain pending in courts for long time in respect of alleged encroachments over the suit property. It is, therefore, always desirable to get the suit land or field measured by an expert or competent public official to find out the area of the suit land encroached upon, more so, when oral evidence cannot help the court when it is in the form of words against words by rival parties. Considering the implication of Section 83 of the Indian Evidence Act, presumption can be drawn in respect of map or plan drawn by competent public official in such cases so as to resolve the controversy between the parties. It is, therefore, decided by this court earlier also, that it is always desirable to insist upon the parties in such cases, to have a joint measurement in respect of the suit land or joint property, then the trial court upon evidence led before it can decide the real controversy in the suit finally, effectively and in accordance with law. In cases where parties are at dispute or not in agreement with the map or plan, Court Commissioner can certainly be appointed in order to prepare a map or plan in respect of the suit property in order to assist the court. There is no question of assisting the plaintiff to collect evidence of disputed factum of possession in such cases. Therefore, rulings pointed out on behalf of the respondent are accordingly distinguishable in such cases and would not militate against the appellant. Because in the absence of map or plan, in cases of boundary dispute, even if decree is passed, it would be meaningless as it may remain inexecutable in absence of authentic map. For the aforesaid reasons, therefore, the impugned judgment and order is required to be quashed and set aside with necessary directions for just decision in the case. Hence the following order.

ORDER

(i) The impugned judgment and order dated dated 20-11-2012 passed in Regular Civil Appeal No. 24/2012 is quashed and set aside.

(ii) The proceeding is remanded back to trial court with direction that the trial court shall appoint Taluka Inspector of Land Records or District Inspector of Land Records as Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1976.

(iii) The Court Commissioner, so appointed shall take measurement of the land claimed by the parties in presence of the parties and their local counsel. The Court Commissioner shall prepare map showing therein boundaries of the disputed suit land and land claimed by the defendant along with measurement in the map.

(iv) The Court Commissioner shall prepare report and file it in the record of the case and thereafter trial judge would give an opportunity to the parties to lead evidence, upon considering the evidence as well as the report of the Court Commissioner, shall decide the suit afresh in accordance with law as expeditiously as possible preferably within six months of the receipt of this order.

Substantial question of law stands answered in the affirmative accordingly.

No order as to costs.

Appeal allowed.