2014(6) ALL MR 696
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A.P. BHANGALE, J.

Deorao s/o. Punjabrao Mohod & Anr. Vs. Janardhan s/o. Dhondbaji Mankar

Writ Petition No.1677 of 2014

10th June, 2014

Petitioner Counsel: Shri V.D. MULEY

Civil P.C. (1908), O.26 R.9 - Court commissioner - Appointment of - Validity - Court Commissioner was appointed for measurement of suit land and also road side adjacent thereto - And to adjudicate dispute in respect of alleged encroachment, falsity, fraud etc. alleged on behalf of defendant - In cases of dispute regarding boundaries it is necessary that map which is agreeable to parties in respect of immovable suit property needs to be prepared so that such agreed maps authentically prepared is brought on record can be considered by trial court to set at rest real controversy between parties expeditiously and early as possible - Appointment of Court Commissioner, proper. (Paras 10, 11, 12)

Cases Cited:
Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare & Ors., 2001(1) ALL MR 653 =2001(2) Mh.L.J. 959 [Para 9,10]
Manikrao Ramji Chawake Vs. Ashok Ambadas Gawande & Anr., 2014(2) Mh.L.J. 840 [Para 11]
Kolhapuri Bandu Lakade Vs. Yallappa Chinappa Lakade, since deceased through Pooja @ Poojari Y. Lakade & Ors., 2011(3) ALL MR 599 =2011(3) Mh.L.J. 348 [Para 11]
Ram Kishore Sen & Ors. Vs. Union of India & Ors., AIR 1966 SC 644 [Para 11]


JUDGMENT

JUDGMENT :- Heard learned Counsel appearing for the petitioners for considerable length of time.

2. The facts of the case in a nut shell are as under:-

Respondent - Shri Janardhan s/o Dhondbaji Mankar had filed Special Civil Suit No.101 of 2010 in the Court of Civil Judge Senior Division, Nagpur, pursuant to enhancement of pecuniary jurisdiction. The suit was transferred to the learned Civil Judge Junior Division, Saoner and was renumbered as Regular Civil Suit No.18 of 2012. The suit was instituted by the respondent-plaintiff against the petitioners-defendants seeking relief of declaration, permanent and mandatory injunction, cancellation of sale deed dated 16.2.2001 and damages. The respondent - plaintiff claimed ownership of the suit property which was described in detailed in paragraph No.1 of the plaint with boundaries thereof.

3. According to the respondent - plaintiff, defendant No.2 entered into the illegal transaction to sell road land to defendant No.1 under the registered sale deed dated 16.2.2001 admeasuring about 5,374 square feet (499.26 square meters) which was also described by the boundaries thereof. The respondent - plaintiff had alleged encroachment by defendant No.1 over the suit property as well as illegal construction carried out by defendant No.1. He had further alleged falsity, fraud etc. on the part of the defendants.

4. Thus, complaining of illegal and unauthorized construction over the road land as well as encroachment over the suit property, the respondent - plaintiff had prayed for declaration against the defendants to the effect that defendant No.1 had no right, title or interest to make illegal or unauthorized construction over the road land on Western Side of the suit property. Thus, the relief was sought that the encroachment as well as unauthorized construction which are contrary to law be removed with further injunction to prevent encroachment and illegal construction over the suit property and also for consequential relief of declaration that sale of road land was illegal and inoperative or void. Under these circumstances, as the parties had disputed not only about illegality of the construction made but also about right of the defendants to sell the land forming part of the road and also for removal of the encroachment by the defendants.

5. During the pendency of the suit, the respondent - plaintiff moved an application under Order XXVI Rule 9 of the Civil Procedure Code for appointment of the Court Commissioner for adjudication of the dispute between the parties.

6. After carrying out the amendment in respect of the suit land, the petitioners - defendants had objected on the ground that there was no map produced in the case regarding measurement of the suit property and prayed that application is liable to be dismissed as the Court cannot collect the evidence by appointing the Court Commissioner.

7. I have perused the impugned order dated 13.12.2013, passed by the learned Civil Judge Junior Division, Saoner, in Regular Civil Suit No.18 of 2012. By application Exh.61, the respondent - plaintiff had prayed for measurement of the suit land and, therefore, the trial Court was pleased to appoint the DILR (Deputy Superintendent of Land Records), Saoner, as measurer to carry out the measurement of the suit property as also plot sold by defendant No.2 to defendant No.1 under the registered sale deed dated 16.2.2001. The respondent - plaintiff was directed to deposit measurement expenses with the Office of the DILR, Saoner and to furnish relevant papers so as to enable the Court Commissioner to carry out the measurement of the suit land.

8. Learned counsel appearing for the petitioners - defendants have grievance that the learned trial Judge could not have assisted the respondent - plaintiff to carry out the measurement of the suit property through the Office of the DILR, Saoner.

9. Learned counsel appearing for the petitioners - defendants made reference to the ruling in the case of Sanjay Namdeo Khandare ..vs.. Sahebrao Kachru Khandare and others reported at 2001(2) Mh.L.J. 959 : [2001(1) ALL MR 653]. The Single Judge of this Court, in the peculiar facts and circumstances of the case, felt that there was reason to interfere with the order impugned by the civil revision application directing appointment of the Court Commissioner. In that case, the Court Commissioner was appointed to visit and inspect the spot being suit field and to submit report as to who was in actual possession of the suit field. That was considered as tantamount to appoint the Court Commissioner for collecting the evidence as to who is in possession since trial Court intended to collect the evidence as to who is in possession. Therefore, this Court was pleased to set aside that order in revision.

10. However, considering the facts and circumstances as well as averments in the plaint in the pending suit i.e. renumbered as Regular Civil Suit No.18 of 2012 (Old Special Civil Suit No.101 of 2010 transferred from the learned Civil Judge Senior Division, Nagpur) it appears that the appointment of the Court Commissioner was for measurement of the suit land and also road side adjacent thereto and the Court Commissioner appointed was DILR, Saoner to carry out the measurement of the suit property by directing the respondent - plaintiff to deposit the measurement cost with the Office of DILR, Saoner. The averments in the plaint as well as the application for appointment of the Court Commissioner and the order passed by the learned Civil Judge Junior Division, Saoner, on 13.12.2013 in respect of the present case stand on different footing than in the case of Sanjay Namdeo Khandare, [2001(1) ALL MR 653] cited supra.

In other words, the order requiring DILR to carry out the measurement of the suit property and to submit a report is passed by the trial Court for to adjudicate the dispute in respect of alleged encroachment, falsity, fraud etc. alleged on behalf of the defendants. This Court has time and again in the cases of dispute regarding boundaries or boundary marks desired that map which is agreeable to the parties in respect of the immovable suit property needs to be prepared through the competent Officials of the Government preferably as the Court Commissioner so that such agreed measurement maps authentically prepared is brought on record can be considered by the trial Court so as to set at rest the real controversy between the parties, expeditiously and as early as possible.

11. This Court in the case of Manikrao Ramji Chawake ..vs.. Ashok Ambadas Gawande and another, reported at 2014(2) Mh.L.J. 840 discussed about necessity of appointment of the Court Commissioner in a suit involving dispute as to boundaries or boundary marks and necessity of appointment of the competent cadastral surveyor as the Court Commissioner to prepare measurement map which would be authentic map agreeable to the parties so that the Court can set at rest the real controversy between the parties expeditiously on merits and according to law. Thus, when the map is required to be drawn by the competent Officials from the department of DILR or TILR, as the case may be, to measure the land in dispute in the presence of the parties and produce the map/plan on record with his report, it can assist the Court to decide the real controversy finally. The trial Court may certainly require authentic map so as to draw statutory presumption under Section 83 of the Indian Evidence Act regarding accuracy of such map or plan produced on record from the competent Officials from DILR or TILR, as the case may be. Thus, the trial Court may upon further evidence led, if any, by the parties, decide the controversy finally according to law.

The same view was taken by this Court in the case of Kolhapuri Bandu Lakade ..vs.. Yallappa Chinappa Lakade, since deceased through Pooja @ Poojari Y. Lakade and others reported at 2011(3) Mh.L.J. 348 : [2011(3) ALL MR 599] so as to make observation that the Court Commissioner would assist the Court to arrive at just decision in the case and when the report is produced on record, the party disputing the same, can always be entitled to cross examine the Court Commissioner so as to challenge the veracity of the report/map.

The same view was taken with reference to earlier cases decided by this Court as well as by the Apex Court in the case of Ram Kishore Sen & ors. ..vs.. Union of India and ors. reported at AIR 1966 SC 644. This Court in Second Appeal No.45 of 2013 decided on 2.4.2014 had allowed the second appeal by setting aside the impugned orders therein with direction to the trial Court to consider the appointment of the Court Commissioner, who shall be competent Official of the DILR or TILR, as the case may be and who shall secure copies of necessary public record relating to subject-matter of dispute to settle the 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 so as to prepare and submit a detailed map. The trial Court on the basis of such written report may allow the parties to lead additional evidence and endeavour to get an agreed map on record. Thus, the Court can decide the real controversy in the suit between the parties and executing Court would have no any difficulty to effectively execute the decree passed in such suit.

12. Thus, considering the legal position stated as above, I find that the impugned order cannot be assailed as unjust, improper or contrary to law contained under Order XXVI Rule 9 of the Civil Procedure Code. Hence, the writ petition is without merits and needs to be dismissed.

13. In the result, the writ petition is dismissed in terms of above order. There shall be no order as to costs.

Petition dismissed.