Second Appeal No.45 of 2013

2nd April, 2014

Petitioner Counsel: Mr. B.J. LONARE
Respondent Counsel: Mr. V.K. PALIWAL

Cases Cited:
Vijay Shrawan Shende & Ors. Vs. State of Maharashtra, 2009(4) ALL MR 601 =2009 (5) Mh. L.J. 279 [Para 7,9]
Ram Kishore Sen & Ors. Vs. Union of India & Ors., AIR 1966 SC 644 [Para 9]

JUDGMENT

JUDGMENT :- This second appeal is directed against the judgment and order dated 20th July 2012 passed by the District Judge-I, Akola in Regular Civil Appeal No. 3 of 2009. The said appeal arose from judgment and decree passed by the Joint Civil Judge JD, Akola in Regular Civil Suit No. 6 of 2009 whereby suit was dismissed.

2. Facts, in brief, are that the plaintiffs own and possess field Gat No. 268 admeasuring 5.88 HR situated at village Dhamana Bk, Tahsil Akot, District Akola. Plaintiffs complained of encroachment on their land by adjacent land owner and, therefore, on 24.6.2004, Taluqa Inspector of Land Records, Akot was approached for encroachment of the suit land. Measurement was done and according to TILR, southern side land-holder (defendant) made encroachment over the land of plaintiffs to the extent of 00.46 HR. Plaintiffs, therefore, served the defendants with legal notice dated 22.9.2004 calling upon them to remove encroachment. Inspite of receipt of notice defendants did not remove encroachment and hence, plaintiffs were constrained to file suit.

3. Defendants filed their Written Statement and denied all adverse allegations. They contended that on southern side of Gat No. 268 of village Dhamna, there is agricultural land of village Rel and in between the two villages boundaries, there is "Shivdand" of the Government which the TILR has not shown in his map. At the time of measurement, TILR failed to show plaintiffs' sub-division and for these two reasons, measurement is rendered illegal. They prayed for dismissal of suit.

4. The Trial Court, upon evidence, proceeded to dismiss the suit finding that plaintiffs have failed to prove the encroachment by the defendants and also refused to order enquiry into mesne profits, as prayed for by the plaintiffs.

5. Plaintiffs who were aggrieved by dismissal of suit claim, preferred 1st appeal which also came to be dismissed by the District Judge-I, Akot.

6. This appeal was admitted on the following substantial question of law -

" Whether the Courts below were right in not directing re-measurement of the suit field and the adjoining lands, by following due procedure governing the measurements ?

The answer is in the negative for following reasons -

7. Learned counsel for the parties took me through the record and judgments of the Courts below. Learned counsel for appellants relied upon ruling in Vijay Shrawan Shende & ors v. State of Maharashtra reported in 2009 (5) Mh. L. J. 279 : [2009(4) ALL MR 601] in order to submit that the substantial question of law formulated herein is already answered by this Court in the ruling cited. Relevant substantial question of law framed in the case law cited, reads thus -

"If a party to suit proves the act of encroachment, but fails to prove extent thereof by legal evidence, will it be open to the Court to astutely dismiss the suit, or cause proper local enquiry and render a fresh report under Order 26, Rule 9 of Civil Procedure Code, and secure on record report of legal evidence as to fact of matter about encroachment, or otherwise as to the allegaion in plaint and fact of encroachment proved by the party to suit ?"

The said question of law was answered as under:

"It would not be proper to dismiss the suit simply because the Court Commissioner has not adopted a correct procedure of measurement and the exercise of re-measurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadesteral Surveyors are not attributable to parties to the suit."

8. Learned counsel for respondents who opposed this appeal, submitted that both the courts below recorded concurrent findings of fact after going through the evidence including plaint map and, therefore, as plaintiffs had failed in courts below, the appeal ought to be dismissed.

9. In cases to determine encroachment, it is always desirable to have disputed suit property measured by competent surveyor to find out encroachment and its extent. Oral evidence cannot prove such contentious issue conclusively. In a suit where parties are disputing boundaries of property and one of the parties alleges encroachment made by another party to the suit inside suit property. In such case the plaint map as evidence in respect thereof is vital document for to decide real controversy between the parties finally. This Court has time and again expressed opinion about the necessity of duly drawn measurement plan/map in any suit in which there is a boundary dispute. The Trial Court as well as 1st Appellate Court which are Court of Facts, are duty-bound to ascertain that a map is drawn to the appropriate scale by competent Government official from the office of TILR or DILR, as the case may be, so that measurement of suit property is carried out in presence of the parties after due notice to them or even if they are absent, so as to ensure that the suit property is properly measured, boundaries are fixed and boundary dispute is finally settled by producing map in the Court by the plan maker who can prove its genuineness by deposing in support of such plan/map, if it is so necessary in the absence of admission for exhibiting the map. The Trial Court can certainly raise presumption of accuracy and genuineness of such map in view of Section 83 of the Evidence Act if map is drawn by competent authority. (See: Ram Kishore Sen & ors v. Union of India & ors reported in AIR 1966 SC 644) When such vital document is duly produced, proved and established, necessary detailed decree can be follow if there is any encroachment on the suit property. As held by this Court in Vijay Shende's case, [2009(4) ALL MR 601] (supra), in such cases, fact of encroachment may be proved partly by oral evidence although the extent of encroachment cannot be proved in absence of public records without following due procedure emerging from Section 36 and Section 60 of the Evidence Act. In view of this recent judicial precedent referred to above, in the larger interest of justice, when it appears that the trial Court as well as 1st Appellate Court failed to follow proper procedure in this regard to ascertain the boundaries of the suit property. I must allow this appeal by setting aside impugned judgments and orders with direction to the trial Court concerned to consider appointment of court commissioner; who shall be competent official from the Office of Taluka Inspector of Land Records and District Inspector of Land Records, as the case may be. The court commissioner, if required, shall secure copies of necessary public record relating to Gat/Survey number, subject-matter of dispute for to settle 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. He shall submit his written report to the trial Court together with detailed map. Learned trial Court after considering such written report may allow the parties to lead additional evidence if it deems it fit and shall pass order according to law. Parties shall appear before the trial Court on 28th April 2014. It is desirable that the trial Judge shall endeavour to get an agreed map on record and in the absence of such agreed map/plan can depend upon evidence obtained through the Court Commissioner as indicated above.

10. In the result, appeal is allowed in terms of above order. Impugned judgments and orders are are set aside. No order as to costs. Let the R & P go down immediately.

Appeal allowed.