Bhangale, J., F.M. Reis, J., have also held that in case of dispute
of encroachment of a site, an appointment of Court Commissioner who could be City
Survey Officer or Cadastral Surveyor for taking joint measurement of the property
owned by the plaintiff and defendant for the purpose of local investigation under
Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just
decision of the case. It has also been held by this Court that merely because a Court
Commissioner is appointed, it will not prejudice the interest of either of the parties. It
has been held that if any of the parties is aggrieved by the report of the Court
Commissioner, an opportunity would be available to that party to cross examine the
Court Commissioner and to point out as to how his conclusions were not correct. It
has further been observed that the party who was not aggrieved would also prove
how his conclusions are correct.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6497 OF 2009
Kolhapuri Bandu Lakade V/s. Yallappa Chinappa Lakade, Decd.,
Thru’ Pooja @ Poojari Y. Lakade & Ors.
CORAM : B.R. GAVAI, J.
DATE : 14 MARCH, 2011.
Citation; 2011 (3) ALL M R 599
2. The Petitioner challenges the order dated 7th July, 2009 passed by the learned
1.
8th Joint Civil Judge, Senior Division, Pune below Exhibit 35 in Regular Civil Suit No.
513 of 2007, thereby rejecting the application filed by the present Petitioner for
appointment of Court Commissioner.
3.
The facts in brief giving rise to the present Petition are as under :
The PetitionerPlaintiff has filed the Suit, being Regular Civil Suit No.513 of
2007, for declaration and restoration of possession after removing the encroachment
of the RespondentDefendant. The Plaintiff in the plaint has contended that the suit
land is owned by the Plaintiff from the period of his ancestors; that the said land has
been given City Survey No.1894; that the Plaintiff has constructed two rooms on the
said land and the room admeasuring 20 ft. x 10 ft. on the northern side was given to
the RespondentDefendant for residing therein for certain time without any
consideration. It is contended that though the Defendant had assured the Plaintiff
that after making alternate arrangement he will return the said room, he was
refusing to do so for last 10 to 12 years. In this premise, the Plaintiff has prayed for
the reliefs as claimed hereinabove. The Suit of the Plaintiff is resisted by the
Defendant. It has been contended by the Defendant that the lands bearing Survey
No.315B and Survey No.317B/1 were given by the British Government in the year
1911 to the persons belonging to Vaidu Nomadic Tribe. It was contended that for the
sake of convenience, the land was given in the name of ancestors Shankar Laxman
Pawar and as such the name of said Shankar Laxman Pawar and his brothers and
sisters were recorded in the 7/12 Extract. The contention of the Plaintiff, that he was
the owner of the land was denied by the Defendant. It is the contention of the
Defendant that the house in which he is residing has been owned by him since the
period of his ancestors. It is the contention of the Defendant that in the records, the
said house has been registered as City Survey No.1895. The Defendant has also filed
a counter claim for a declaration that the property, as stated in the counter claim,
was the property in possession of the Defendant, from the period of his ancestors. A
declaration was prayed in the counter claim that the Plaintiff had no relation with
the house on which the Defendant was residing and further for an injunction
restraining the Plaintiff from disturbing the peaceful possession of the Defendant.
During the pendency of the Suit, two applications came to be filed for
4.
temporary injunction; one by the Plaintiff and the other by the original Defendant.
The application of the Plaintiff was rejected and that of the Defendant was allowed.
Being aggrieved thereby, an Appeal was carried before the learned District Judge.
The same was also dismissed. Being aggrieved thereby, the petitioner approached this
Court by way of Writ Petition No.1440 of 2009. The said Petition was disposed of by
the order dated 6th March, 2009. Thereafter, the application below Exhibit 35 in
Regular Civil Suit No.513 of 2007 came to be filed for appointment of the City
present Petition.
Mr. Godbole, the learned Counsel appearing on behalf of the Petitioner,
5.
Survey Officer, Pune as “Court Commissioner”. The same was rejected and hence the
submits that the issue involved in the present Petition is as to whether the
construction of the RespondentDefendant is on City Survey No.1894 or City Survey
No.1895. The appointment of the Taluka Inspector of Land Records as a “Court
Commissioner” was necessary in as much as the report of the said Commissioner
would facilitate the Court for finding out an actual position. Mr. Godbole submitted
that the issue involved in the present Petition is the issue involved in various matters
and, therefore, has taken me through various pronouncements on the issue. The
learned Counsel has relied on the judgments of the learned Single Judges of this
Court, namely, by M.S. Vaidya, J., in the case of Tajmulhussain s/o. Mulla Mumtaz
Hussain Vs. Satish s/o. Bhanudas Chavan, reported in 1994 (3) Bom. C.R. 317,
various judgments delivered by S.T. Kharche, J., in the cases of Ushabai w/o.
Sharadchandra Bannore Vs. Wasudeo s/o. Baliramji Mehare & Ors., reported in
2003 Mh.L.J. 594, Ramchandra Bhikaji Jagtap Vs. Dudharam Langruji Padvekar,
Dead, Thru’ L.Rs. & Ors., reported in 2003 B.C.I. 659, and Kashinath Ramkrishna
Chopade Vs. Purushottam Tulshiram Tekade & Ors., reported in 2005 (6)
Bom.C.R. XXVI7, by A.P
. Bhangale, J., in the case of Yeshwant Bhaduji Ghuse Vs.
Vithobaji Laxman Ladekar, reported in 2010 (3) Mh.L.J. 956, by S.B. Deshmukh,
J., in the case of Vij Kamagar Sahakari Patsanstha Ltd. Vs. Ramkrushna
Dhondiram Thorat & Ors., reported in 2009 (1) Bom.C.R. 880, and the judgment
of the Apex Court in the case of Haryana Waqf Board Vs. Shanti Sarup & Ors.,
6.
reported in (2008) 8 SCC 671.
The learned Counsel further submitted that the view taken by the learned
Single Judge of this Court, namely, Khanwilkar, J., in the case of Sanjay s/o.
Namdeo Khandare Vs. Sahebrao s/o. Kachru Khandare & Ors., reported in 2001
(1) Bom.C.R. 800, is per incurium since it does not take into consideration the
provisions of Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure in
correct perspective. He further submits that the view taken by me in the case of
Pandurang Nandlal Chandak & Anr. Vs. Sandip Mukundrao Pensalwar & Anr.,
reported in 2009 (2) Mh.L.J. 487, is also per incurium, in as much as the same does
not take into consideration the provisions of Section 75 and Order XXVI Rule 9 of the
Code of Civil Procedure in correct prospective and also does not notice the judgment
of the Apex Court in the case of Haryana Waqf Board cited supra, which is prior to
7.
the decision in Pandurang’s case, cited supra.
As against this, Mr. Rahul Kashid, the learned Counsel appearing for the
Respondents, on the contrary submits that the learned trial Judge has rightly rejected
the application, inasmuch as it was in the nature of collecting evidence in support of
Though various judgments of various learned Single Judges of this Court
ig
8.
the case of the Plaintiff and, therefore, no interference could be warranted.
including my judgment have been pointed out by Mr. Godbole. I do not think that a
reference to those judgments would be necessary in view of the judgment of the Apex
Court in the case of Haryana Waqf Board cited supra. In the said case a Suit was
filed by the Punjab Waqf Board for declaration and injunction. The suit of the
Plaintiff claiming that the Defendants had encroached in suit property was dismissed
by the trial Court on the ground that the Board had failed to prove that the
Respondents have encroached upon the land belonging to the said Board. The Appeal
preferred thereagainst was dismissed by the Appellate Court. The Second Appeal
filed before the High Court was dismissed summarily on the ground that the Second
Appeal stood concluded by the concurrent findings of facts. In this background, the
Apex Court observed thus :
“3.
The dispute that was raised by the parties before the court
was whether the respondent had encroached upon any land
belonging to the appellant Board. Therefore, it cannot be in
dispute that the dispute was in respect of the encroachment
of the suit land.
9.
Admittedly, in this case, an application was filed under Order
XXVI Rule 9 of the Code of Civil Procedure which was
rejected by the trial court but in view of the fact that it was a
case of demarcation of the disputed land, it was appropriate
for the court to direct the investigation by appointing a Local
Commissioner under Order XXVI Rule 9 CPC.”
4.
Observing as aforesaid, the Apex Court set aside the judgement and order of
the High Court and while setting aside the same, the Apex Court observed that the
ig
High Court ought to have considered whether in view of the nature of dispute, the
Local Commissioner should be appointed for the purpose of demarcation in respect
of suit land. As such the matter was remitted back to the High Court for deciding it in
the light of the observations made by the Apex Court.
The learned Single Judge of this Court, F.M. Reis, J., in the case of Girish
10.
Vasantrao Bhoyar & Anr. Vs. Nimbaji Warluji Bambal, reported in 2009 (4)
Mh.L.J. 371, has held that in order to determine whether there is an encroachment,
it is always desirable to get the measurements of the land encroached upon. Another
learned Single Judge of this Court, A.P
. Bhangale, J., in the case of Yeshwant Bhaduji
Ghuse Vs. Vithobaji Laxman Ladekar, reported in 2010 (3) Mh.L.J. 956, though has
not noticed the judgment of the Apex Court in the case of Haryana Waqf Board
cited supra, but relying on the earlier judgment of this Court delivered by S.T.
Kharche, J., in the case of Ushabai w/o. Sharadchandra Bannore cited supra, has
observed thus :
In Ushabai Sharadchandra vs. 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 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.”
Even prior to the judgment of the Apex Court in the case of Haryana Waqf
ig
11.
“8.
7
Board cited supra, the learned Single Judge of this Court, M.S. Vaidya, J., in the case
of Tajmulhussain cited supra has observed thus :
..........................................................................................
In a suit, in which the cause of action is founded on the
alleged encroachment of a particular land and in which the
determination of the boundary line between the two
adjoining properties is the only issue, the Court could hardly
decide such a matter on its own without any dependable
expert assistance.”
“9.
12.
The learned Single Judge has further observed that :
“10. It may be noted here that making of such an order for
appointment of the Commissioner would not have prejudiced
the interest of either of the parties, because it was only in that
eventuality, that it was possible for the Court to arrive at a
proper conclusion. If at all any party was aggrieved by the
report given by the Commissioner so appointed by the Court,
an opportunity would have become available to that party to
crossexamine the Commissioner and to point out how his
conclusions were not correct. The party, who was not
aggrieved could also prove how his conclusions were correct.”
Another learned Single Judge of this Court, namely, S.T. Kharche, J., in the
case of Kashinath Ramkrishna Chopade cited supra has observed thus ;
13.
It can thus clearly be seen that the Apex Court in the case of Haryana Waqf
14.
“13. In view of the aforesaid legal position, it appears to be
absolutely necessary that the City Surveyor ought to have
been appointed when the question arises as to whether any
encroachment has been made or not. The appointment of
City Surveyor or Cadastral Surveyor for taking joint
measurement of the property owned by the plaintiff and
defendant for the purpose of local investigation under Order
XXVI, Rule 9 of the Code of Civil Procedure not only become
relevant but appears to be absolutely essential for the just
decision of the case.”
Board cited supra in unequivocal terms has held that in the case of demarcation of
disputed lands, it is appropriate for the Court to direct the investigation by
appointing a Local Commissioner as provided under Order XXVI, Rule 9 of the Code
of Civil Procedure. The other learned Judges of this Court, namely, M.S. Vaidya, J.,
S.T. Kharche, J., A.P
. Bhangale, J., F.M. Reis, J., have also held that in case of dispute
of encroachment of a site, an appointment of Court Commissioner who could be City
Survey Officer or Cadastral Surveyor for taking joint measurement of the property
owned by the plaintiff and defendant for the purpose of local investigation under
Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just
decision of the case. It has also been held by this Court that merely because a Court
Commissioner is appointed, it will not prejudice the interest of either of the parties. It
has been held that if any of the parties is aggrieved by the report of the Court
Commissioner, an opportunity would be available to that party to cross examine the
Court Commissioner and to point out as to how his conclusions were not correct. It
has further been observed that the party who was not aggrieved would also prove
how his conclusions are correct.
15.
In so far as judgment delivered by the learned Single Judge of this Court,
namely, Khanwilkar, J., in the case of Sanjay Namdeo Khandare cited supra is
concerned, in the said matter the appointment of the Commissioner, who was sought
to be appointed, was for the purpose of finding out as to who was in actual
possession of the suit land. In that view of the matter, it appears that the learned
Judge has held that the Court Commissioner cannot be appointed for collecting the
16.
evidence.
In so far as my judgment in the case of Pandurang Nandlal Chandak cited
supra is concerned, it is clear from the said judgment that the judgment of the Apex
Court in the case of Haryana Waqf Board cited supra was not brought to my notice,
nor was it noticed by me while delivering the said judgment. It can further be seen
that the judgment of the learned Single Judge of this Court, namely, M.S. Vaidya, J.,
in the case of Tajmulhussain cited supra was also not noticed by me. In any case,
now in view of the judgment of the Apex Court in the case of Haryana Waqf Board
cited supra, the view taken by me in the case of Pandurang Nandlal Chandak cited
supra will have to be held as per incurium.
In so far as the facts in the present case are concerned, undisputedly, one of the
17.
main areas of dispute between the parties is as to whether the construction is on City
Survey No.1894 or City Survey No.1895. It is the contention of the Petitioner that the
construction is on City Survey No.1894, whereas it is the contention of the original
Defendant that it is on City Survey No.1895, which according to him is in his
possession from the period of his ancestors. No doubt that there are other ancillary
issues regarding the title of the property also. However, in so far as claim of the
Plaintiff regarding the entitlement of Defendant to City Survey No.1895 is concerned,
the same is not contested by the Plaintiff. At the same time, in so far as the
entitlement of the Plaintiff to City Survey No.1894 is concerned, the same is not
18.
contested by the Defendants.
One more fact that needs to be taken into consideration is that though the
Petitioner had applied for getting the measurement done through the City Survey
Officer, the same could be done as the DefendantsRespondents had objected to the
measurement being carried out by the City Survey Officer on the ground of pendency
of the Regular Civil Suit No.513 of 2007 between the parties.
19.
In that view of the matter, to find out as to whether the Defendants have, in
fact, encroached upon the City Survey No.1894 or not, I find that the appointment of
Court Commissioner would assist the Court in arriving at the just decision. Needless
to state that, as has been consistently observed, the report of the Court Commissioner
would not be conclusive and if any of the parties are aggrieved by the same, such a
party would always be entitled to cross examine the Court Commissioner, so as to
20.
challenge the veracity of the report.
In that view of the matter, the Writ Petition succeeds. The impugned order
dated 7th July, 2009 passed by the learned 8th Joint Civil Judge, Senior Division, Pune
below Exhibit 35 in Regular Civil Suit No.513 of 2007 is quashed and set aside. The
application filed by the PetitionerPlaintiff below Exhibit 35 in Regular Civil Suit No.
513 of 2007 for appointment of City Survey Officer as “Court Commissioner” is
In the facts and circumstances of the case, there shall be no order as to costs.
[B.R. GAVAI, J.]
21.
allowed.
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