It is settled position of law that under Order 26, rule 9 of the Code of Civil Procedure, the Court has discretion to order local investigation. The object of 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. Cases of boundary disputes and disputes about identity of lands are instances when a Court should order local investigation under Order 26, rule 9 of the Code. 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 exact area encroached upon, Oral evidence cannot conclusively prove such an issue.
Bombay High Court
Second Appeal No. 220 Of 1999 vs Seloo, District Wardha on 3 December, 2009
Bench: A.P. Bhangale
Appellant : Yeshwant Bhaduji Ghuse,
versus
Respondent : Vithobaji Laxman Ladekar,
Citation;2010 (3) MH L J (B0m) 956
1. This second appeal is directed against the judgment and order dated 30th January 1998 in Regular Civil Appeal No. 124 of 1992 passed by 2nd Additional District Judge, Wardha whereby appeal was dismissed which was preferred against the judgment and decree passed by 2
the Joint Civil Judge, Junior Division, Wardha in Regular Civil Suit No. 138 of 1987 on 17.9.1992.
2. A layout of plots was carved out in land survey nos. 141/1 and 141/3 at Seloo by vendor of appellant/ plaintiff Yeshwant. Vendor Ashok Deshpande had retained one plot admeasuring 24 x 30 square feet, shown by letters A E F C in the plaint map. Plaintiff purchased suit plot by a registered sale deed dated 13.10.1986 from Ashok Deshpande, which is shown by letters A B C D in the plaint map. Defendant purchased a plot from the same layout, shown by letters O P Q R in the plaint map whereon he constructed a residential house. In absence of plaintiff, defendant made encroachment beyond the line shown by letters O P by constructing temporary latrine (shown by letters C D). Plot purchased by plaintiff in the name of his was is bearing plot no. 23. Out of Plot No. 15 located just opposite Plot No. 23 beyond road, plaintiff has purchased an area admeasuring 10 x 30 towards road side. Respondent/defendant did not remove encroachment and that compelled appellant/plaintiff to file suit.
3. Defendant denied suit claim. He stated that he 3
purchased his plot by registered sale deed dated 21.4.1979 from one Dajiba Talwekar, admeasuring 25 x 18. He denied purchase of plots by plaintiff for want of knowledge.
4. Learned counsel for the appellant in support of the appeal invited my attention to exhibit 42 which is a report filed by the Taluka Inspector of Land Records (TILR), Seloo along with copy of approved layout plan carved out in field survey nos. 140/1, 140/3, mouza No. 448, Seloo which was originally belonging to Deorao Raghupatrao Deshpande. From the approved layout plan, it appears that 43 plots were carved out from the said land. It appears that TILR had conducted spot inspection. In the accompanying sketch, the TILR has indicated boundaries of plots in question and position thereof. Report was submitted by the TILR to the 1st Appellate Court.
5. Learned counsel for appellant submits that there is no consideration of Commissioner's report while learned counsel for respondent submits that evidence has properly been appreciated on all fours. He submits that had the parties accepted TILR's report, dispute could 4
have been solved then and there. However, according to learned counsel for respondent, boundaries shown in the sale deed were rightly considered by the 1st Appellate Court.
6. It is settled position of law that under Order 26, rule 9 of the Code of Civil Procedure, the Court has discretion to order local investigation. The object of 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. Cases of boundary disputes and disputes about identity of lands are instances when a Court should order local investigation under Order 26, rule 9 of the Code. 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 exact area encroached upon, Oral evidence cannot conclusively prove such an issue.
7. In Ram Kishore Sen and ors v. Union of India and ors reported in AIR 1966 SC 644, the Apex Court has observed in paragraphs 11 and 12 thus :- "(11) The question about the admissibility of the map has to be considered in the light 5
of S. 36 of the Evidence Act. The said section provides that :
`Statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government as to matters usually represented or stated in such maps, charts or places, are themselves relevant facts'
The map in question clearly does not fall under the latter category of maps; and so before it is treated as relevant, it must be shown that it was generally offered for public sale. Since the learned Judge has rejected the statement of Mr Gupta on this point, this requirement is not satisfied. We see no reason why the view taken by the learned Judge in regard to the credibility of Mr Gupta's affidavit should be reversed. So, it follows that without proof of the fact that the maps of the kind produced by the appellants were generally offered for public sale Ex. A-1 would be irrelevant.
(12) It is true that S. 83 of the Evidence Act provides 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 6
purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of maps which satisfy the requirements prescribed by the first part of S. 83. Exhibit A-1 obviously does not fall under the category of the said maps. In fact, as we have already indicated, the learned Judge has given very good reasons, for showing that the map does not appear to be accurate. Therefore, even if map is held to be relevant, its accuracy is not at all established; that is the conclusion of the learned Judge and Mr Mukherjee has given us to satisfactory reasons for differing from the said conclusion."
8. In Ushabai Sharadchandra v. Wasudeo and ors reported in 2004 (2) Mh.L.J. 594, this Court has held that the maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a 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 a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner 7
must be appointed to prepare the same. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case overall again.
9. Considering the settled legal position discussed above, matter will have to remanded to the trial Court with certain directions, in the interest of justice.
10. In the result, both the judgments and decrees are set aside with following directions in the matter - (i). The trial Court shall appoint Taluka Inspector of Land Records/District Inspector of Land Records as a Commissioner under Order XXVI, rule 9 of the Code of Civil Procedure, 1976.
(ii). The Commissioner so appointed shall take joint measurements of the lands owned by the parties in presence of the parties and their local counsel. He shall prepare authentic measurement map showing therein the boundaries of the disputed plots along with the measurements in the map itself.
(iii). The Commissioner shall also prepare his report and file it on the record of case and thereafter 8
the trial Court would give opportunity to the parties to lead evidence and on considering the evidence as well as the report of Commissioner, shall decide the suit afresh in accordance with law as expeditiously as possible, preferably within six months of the receipt of this order. No order as to costs.
A.P. BHANGALE, J
hsj
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