SECOND APPEAL 755 OF 2017

3rd September 2019

Petitioner Counsel: Shri Amit Kukday
Respondent Counsel: Shri Vaibhav Patre
Act Name: Evidence Act, 1872 Code of Civil Procedure, 1908

Section :
Section 36 Evidence Act, 1872 Section 60 Evidence Act, 1872 Section 75 Code of Civil Procedure, 1908 Section 100 Code of Civil Procedure, 1908

Cases Cited :
Para 3: Ram Kishore Sen Vs. Union of India, reported in AIR 1966 SC 644
Para 3: Ushabai Sharadchandra Vs. Wasudev and Others reported in 2004(2) Mh.L.J. 594,
Paras 5, 7, 8: Vijay s/o. Shrawan Shende and Others Vs. State of Maharashtra and others, reported in 2009(5) Mh.L.J. 279
Para 6: Ram Lal and Others Vs. Salig Ram and Others, 2019 DGLS (SC)152
Para 7: Jamir Khan s/o. Amir Khan Vs. Dharamchand s/o. Roopchand Sawala and Others, 2017 DGLS (Bom) 1416
Para 7: Vasant Tukaram Prabhu Vs. Xalinibai Borcar alias Shalinibai Borakar 2014(5) MhLJ 382
Para 7: Kashinath s/o Ramkrishna Chopade Vs. Purushottam Tulshiram Tekade and ors 2005(4) Mh.L.J. 471
Para 7: Girish Vasantrao Bhoyar and anr. Vs. Nimbaji Warluji Bambal 2009(4) Mh.L.J. 371

JUDGEMENT

The appellant is the original plaintiff in Regular Civil Suit 156 of 2000 brought for removal of encroachment and possession of land admeasuring 20 R which is dismissed by the trial Court vide judgment and decree dated 26.9.2011 and the Regular Civil Appeal 66 of 2011 preferred by the plaintiff is dismissed by Adhoc District Judge1, Pusad vide judgment and decree dated 1.7.2017. Dissatisfied, the plaintiff is in appeal under section 100 of the Civil Procedure Code.

2. Basic facts are that the plaintiff is the owner of survey 3/3 situated at village Borgadi admeasuring 2.2 H.R. having purchased the same vide registered saledeed dated 14.4.1976. The plaintiff states that the defendant is the owner of land admeasuring 1.24 H.R. situated towards northern side of the plaintiff's land. The plaintiff contends that the defendant encroached 20 R land owned by the plaintiff which came to light when the government surveyor measured the entire survey 3/2 on the application of one Ashok Suroshe. The defendant contends that the suit is actuated by vindictiveness since the plaintiff was interested in purchasing the land purchased by the defendant. The defendant denies the allegation that he encroached the land of the plaintiff much less portion admeasuring 20 R.

The plaintiff examined four witnesses including PW 4 – Subhash who measured the land as Court Commissioner and who deposed that the defendant encroached portion admeasuring 20R owned by the plaintiff. The defendant examined himself. Perusal of the judgments impugned would show that both the Courts below have assumed that the only relevant and decisive evidence would be that of PW 4 – Subhash – the Court Commissioner who measured the land. It would, therefore, be necessary to analyze how the Courts below have dealt with the evidence of the Government measurer who was the Court Commissioner.

3. The trial Court considered the evidence of the Court Commissioner thus:

“9. It is settled principles of law that in suit for encroachment the evidence of government measurer is of utmost important because he is the person who is possessing original record of land and upon measurement as per law, could state whether there is encroachment upon particular land. The PW 4 who is government measurer has deposed that he issued notices to the plaintiff and defendant 15 days prior to the measurement. PW 4 has produced on record the letter send by this office bearing O.W. no. 777 dated 11.11.2009 addressed to plaintiff and defendant which is at Exh. 50 for remaining present for measurement on 26.11.2009. But there is no evidence on record as to whether this letter is received by the respective parties. During cross of PW 4 it has came on record that defendant had not signed on the office copy of said letter in presence of PW 4 so PW 4 could not state as to whether the signature is of defendant. The PW 4 has deposed that defendant had came on the date of measurement but sooner he went and he further admitted that till he started measurement defendant had not came on the spot. There is no other evidence on record which shows that defendant received the notice of measurement and was present at the time of defendant. So the evidence on record does not shows that PW 4 issued 15 days notice of measurement to the defendant which is mandatory as per law”.
“10. It is settled principles of law that maps or plans made for purpose of any cause must be proved to be accurate. The Hon'ble Supreme Court in Ram Kishore Sen v/s Union of India, reported in AIR 1966 SC 644 and Hon'ble Bombay High Court in Ushabai Sharadchandra v/s Wasudev and Others reported in 2004(2) Mh.L.J. 594, has laid down that “the maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such map is accurate lies on the party who produces it. The maps must be proved by the person who has prepared them. In case of dispute of an encroachment or dimension of site, the first essential is to get agreed map and if parties cannot agree on one, a commissioner must be appointed to prepare the same. In absence of such map, the decree is probably meaningless and execution means virtually starting the case overall again.”
“11. The evidence of PW 4 shows that he could not state the old survey number of the land measured by him. While measuring the land by plane table method one should have the Tipan extract and he was having Tipan extract of survey no. 43 of village Pusad at the time of measurement and not of land measured. The evidence of PW 4 further shows that while measuring land by plane table method it is necessary that three permanent point should be found at the time of measurement and the map at Exh. 66 does not shows that three permanent point were found. Then it is doubtful that how PW 4 measured the disputed land and prepared the map at exh. 66. The evidence of PW 4 shows that he is unable to state the scale on the map at Exh. 66, whether it is in millimeter, centimeter or meter this creates serious doubts about accuracy of map at Exh.66 and its reliability”.
“12. So if we take into account the evidence of the PW 4 it creates serious doubts about accuracy of map at Exh. 66. As per the law laid down by the Hon'ble Supreme Court and Bombay High Court in above referred judgments the map must be proved to be accurate by person who prepared it. The map at Exh. 66 does not fulfills the test of accuracy hence it cannot be relied upon”.
“13. On the contrary the PW 4 admits that the map at Exh. 66 does not shows whether there is encroachment in the survey number 3/3 of village Borgadi. So evidence of PW 4 does not shows that he issued mandatory 15 days notice to defendant, the map at Exh. 66 is not accurate hence it cannot be relied, the evidence produced by the plaintiff does not prove that defendant made encroachment upon 20R land of the plaintiff hence I answer issue no.1 and 3 in the negative. As I have answered issues 1 in the negative the issue no. 2 does not survive. Accordingly answering above issues I proceed to pass following order for issues no. 4-
Order
01) The suit is hereby dismissed.
02) Parties to bear their own cost.
03) Decree be drawn up accordingly”.

4. The appellate Court came down heavily on the Court Commissioner observing that the cadastral surveyor was not serious and acted irresponsibly. The appellate Court held that the cadastral surveyor carried out the measurement ignoring the guidelines in the survey manual. The consideration by the appellate Court of the evidence of the PW 4 – Subhash – Court Commissioner / cadastral surveyor reads thus:

“17. The plaintiff alleged that the defendant has made encroachment gradually over 20 Gunthas portion of plaintiff's land. The record reveals that, the Trial Court ordered the T.I.L.R. Authority to measure the said entire survey number and submit the report and map. Accordingly, the said map has been produced which is at Exh. 65. The plaintiff examined material witness i.e. Cadastral Surveyor to prove the said map. The evidence of said witness can be said to be material in the present question of controversy between the parties. This is the only witness who could have proved the said encroachment. As such, the evidence of Cadastral Surveyor can be said to be significant and it is the only evidence which would decide either the plaintiff proved the encroachment or failed to prove”.
“18. In this regard some guidelines are given in the Survey Manual in respect of measurement by Cadastral Surveyor. These are summarized as follows;
The Cadastral Surveyor must issue notice to the all adjacent land holders 15 days prior to the date of measurement. It is also the duty of plaintiff to produce on record the proof of service of such notices to the adjacent land holders through the Cadastral Surveyor. He should say in what manner he carried out measurement with all particulars. It is not sufficient to make a vague statement that he measured the land by plain table method. He should produce all the necessary Tipans in the Court. If boundaries are disputed then the Government map showing the boundaries of various land should also be produced on record and the map prepared by Cadastral Surveyor showing the difference in the boundaries, so as to draw the inference of encroachment as per the Survey Manual”.
“19. In the present case the evidence of P.W. 4 the Cadastral Surveyor does not satisfy many of the such standards which are referred in the Survey Manual. He has not produced the copy of notice showing service of notice to each of the land holders. He has not produced copy of Tipan. He has not produced survey map.”
“20. The oral evidence as regards measurement and preparation of map is rather a simple statement that he was appointed as Court Commissioner; he issued notices to the parties and thereafter he went on the day fixed. He took with him the order of the Court, the application, 7/12 extract, Tipan Utara, village map etc. He stated that he obtained signatures of concerned cultivators on office copy of notice, but it is not produced. Furtehr statement is that he measured the land by plain table method and prepared the map and he produced the same.”
“21. During cross-examination PW 4 stated that, defendant has not put his signature on office copy of notice in his presence, therefore, he cannot tell whether the signature was of defendant or not. He admitted that, without Tipan Utara the measurement by plain table method cannot be carried out. He further stated that, he is not able to tell old survey number of the land, which he measured. He also admitted that prior to carrying out the measurement, three permanent boundary marks are to be found out. He further stated that the map prepared by him does not show such three boundary marks. He further admitted that, prior to measurement he was not knowing as to how many pot-hissas of survey number were there. He further admitted that he was not having any map to find out the boundaries of Survey No.3. He further admitted that the Pusad – Umarkhed road passes through the said survey number, but how much land was acquired for the road is not noted by him. He has not measured Pot-Hissa-1 of Survey No. 3. He further admitted that there is no mention of pot-hissas in Tipan Utara, therefore, he cannot tell the boundaries of the said pot-hissas. He further admitted that, the map Exh. 66 does not reveal whether there is any encroachment or not”.
“22. These are the answers given by this material witness during cross-examination. This clearly indicates that the Cadastral Surveyor had no seriousness of his job carried out by him. On the other hand, it can be said that he was acted without responsibility. The plaintiff also has not taken efforts to bring on record all the necessary requirements to prove the correct measurement and correctness of the map through the mouth of this witness. On the contrary, he has given such admissions during cross-examination, which are above referred, those admissions as regards to finding out permanent boundary marks etc., tends to show that he has not carried out the measurement in proper and correct manner. As such, the plaintiff failed to establish the material fact of encroachment by bringing on record the correct method of measurement from the mouth of material witness i.e. Cadastral Surveyor. The evidence of Cadastral Surveyor as discussed above can not be said to be sufficient ot show the material fact of encroachment by the defendant over the plaintiffs land. Therefore, it is not probable to draw inference of encroachment by the defendant over plaintiff's 20 Gunthas land.
Be it noted, that it was urged before the appellate Court that in view of the errors committed in measurement, the Taluka Inspector Land Records (TILR) be directed to measure the suit land as Court Commissioner. A formal application was preferred by the plaintiff in appeal. The appellate Court framed point (1) whether cadastral surveyor is required to be appointed as Court Commissioner for measurement? and answered the same against the plaintiff. The appellate Court was of the opinion that if similar things are done again and again, the process would be unending.

5. This Second Appeal is heard on the following substantial question of law framed vide order 22.1.2018.

“Whether the trial Court ought to have followed the law as laid down in the case of Vijay s/o. Shrawan Shende and Others vs. State of Maharashtra and others, reported in 2009(5) Mh.L.J. 279 and directed fresh measurement?”
In view of the concurrent findings that the Court Commissioner ignored several guidelines incorporated in the Survey Manual and in general did not do justice to the work assigned, I am of the considered view that the matter must be remanded to the appellate Court with a direction to appoint cadastral surveyor / TILR as Court Commissioner and then permit the parties to lead further evidence if so advised. It appears to be quite settled, that if the Court Commissioner is not alive to his responsibilities and ignores or violates the standard operating protocol, the litigant ought not to suffer.

6. Shri Amit Kukday, the learned counsel for the plaintiff has invited my attention to a relatively recent decision of the Hon'ble Apex Court in Ram Lal and Others vs. Salig Ram and Others, 2019 DGLS (SC)152. The question which fell for determination was whether the High Court was justified in setting aside the decree of the first appellate Court on the ground that the local commissioner had not carried out demarcation in accordance with applicable instructions?. The question is dealt thus by the Hon'ble Apex Court:

“16. An appropriate answer to the question aforesaid is not far to seek. In the course of a civil suit, by way of incidental proceedings, the Court could issue a Commission, inter alia, for making local investigation, as per Section 75 of the Code of Civil Procedure ("the Code" hereafter). The procedure in relation to such Commission for local investigation is specified in Rules 9 and 10 of Order XXVI of the Code. Suffice it to notice for the present purpose that, as per clause (3) of Rule 10 of Order XXVI, where the Court is disssatisfied with the proceedings of such a Local Commissioner, it could direct such further inquiry to be made as considered fit. This clause (3) of Rule 10 of Order XXVI of the Code reads as under:-
"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."
17. The fact that the Local Commissioner’s report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner’s report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner’s report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioner’s report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.
18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.

7. In Jamir Khan s/o. Amir Khan vs. Dharamchand s/o. Roopchand Sawala and Others, 2017 DGLS (Bom) 1416 this Court observes thus:

14. As against it, in the instant case, dispute pertains to removal of encroachment and the law is well settled that such dispute can be decided only on the basis of the joint measurement of both the properties; the correct and proper authority to carry out such measurement and to bring the facts on record before the Court as to exact location of the plot is the TILR.
15. In the present case, already the TILR has been appointed. He has measured the land to find out the encroached portion, however the method adopted by him for carrying out measurement was not proper. Hence, the said measurement was not relied upon. There was no fault on the part of the plaintiff in case of such faulty measurement. Plaintiff, therefore, cannot be held responsible for it and hence, should not suffer the consequence if TILR has not adopted the proper procedure for measurement of the land.
16. This Court has in its judgment in Vijay s/o Shrawan Shende and ors vs. State of Maharashtra and ors. 2009(5) Mh.L.J 279 has held that when there is question as to extent of encroachment, it is not a matter to be adjudicated upon oral evidence of any number of witnesses who have witnessed the act of encroachment, The extent of encroachment cannot be proved in absence of public records and procedure emerging from Section 36 and Section 60 of Evidence Act. Extent of encroachment can be proved only by the person who has measured the land allegedly encroached, with public records relating to the survey numbers. It was further held that the question of encroachment has a direct bearing on the boundaries of the land, which is subjected to land revenue and is measured and marked in the process of 927-J-AO-53-16 12/14 public survey on preparation of Land Records under the provisions of Maharashtra Land Revenue Code or law in existence prior thereto, and these records are public documents. It was further held that, 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 remeasurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadestral Surveyor are not attributable to parties to the suit.
17. In another decision of this Court in case of Vasant Tukaram Prabhu vs. Xalinibai Borcar alias Shalinibai Borakar 2014(5) MhLJ 382, also this Court has dealt with same situation when the First appellate Court has remanded the matter on the count that the measurement map drawn by the TILR was not by adopting the correct and proper procedure. Placing reliance on various authorities of the Apex Court and this Court, it was held that, "whenever controversy in the suit revolves around the identity and boundaries of the suit property, the law would require the Court to suo motu exercise its power under Order XXVI Rule 9 of the Civil Procedure Code, 1908". The said legal position is also upheld in Kashinath s/o Ramkrishna Chopade vs. Purushottam Tulshiram Tekade and ors 2005(4) Mh.L.J. 471 and Girish Vasantrao Bhoyar and anr. vs. Nimbaji Warluji Bambal 2009(4) Mh.L.J. 371.
18. In the instant case also, when both the trial Court and the first Appellate Court have come to a positive finding that the measurement carried out by TILR, appointed by the respondent-plaintiff was not according to the procedure, required by the Rules and hence refused to believe the same, then re-measurement of the suit property becomes necessary to decide finally the controversy involved in the suit which revolved around the boundaries of the property. In my considered opinion, the only way open to the first Appellate Court was, therefore, to direct the remeasurement of land by appointment of TILR as Court Commissioner again. If, on the basis of oral evidence of the parties alone, such disputed question cannot be decided, then without any fault on the part of the respondent-plaintiff, the suit cannot be dismissed, only on the ground that TILR has not done his job properly. After all, the duty of the Court is not to dispose of the matter arbitrarily, but to take keen interest and to ensure that substantial cause of justice is served by resolving finally the controversy involved.

8. In view of the settled legal position, and in view of the concurrent findings recorded that the Court Commissioner committed several and serious errors in carrying out the measurement, I consider it appropriate to quash and set aside the judgment in Regular Civil Appeal 66 of 2011 and to remit the matter to the first appellate Court with the following directions:

i) The parties shall appear before the first appellate Court on 9.10.2019;
ii) The first appellate Court shall appoint TILR/ cadastral surveyor as Court Commissioner to carry out the measurement of the entire survey number and to determine the encroachment, if any, having due regard to the observations of the High Court in Vijay s/o. Shrawan Shende and Others vs. State of Maharashtra and others, 2009(5) Mh.L.J. 279;
iii) The Court Commissioner shall be appointed at the cost of the plaintiff;
iv) The Court Commissioner shall carry out the measurement and submit report within thirty days of the appointment;
v) The parties shall be given opportunity to object to the report of the Court Commissioner and to cross-examine the Court Commissioner, if so advised;
vi) The appellate Court shall endavour to dispose of Regular Civil Appeal 66 of 2011 within six months;
vii) The appeal is partly allowed in the aforestated terms.