In the present case, nothing is brought on record, to indicate that the plaintiff-respondent herein is aggrieved by earlier measurement carried
out by the T.I.L.R. Therefore, in absence of any grievance by the plaintiff about earlier measurement, the exercise done by the trial court to order re-measurement, by appointing the D.I.L.R., as court commissioner, is wholly unwarranted.
11. It appears that the trial court was influenced by the judgment of this court in Vijay's case (supra). However, the trial court failed to appreciate that in the said case, the cadestral surveyor measured the land at the first instance and, therefore, this court ordered re-measurement by the D.I.L.R. However, in this case, the T.I.L.R. has already measured the land, about which the plaintiff did not make any grievance and, therefore, in absence of such grievance, the trial court was not justified in allowing the application for re-measurement, that too when the recording of the evidence was almost complete.
Bombay High Court
Chandrarao S/O Hanumantrao Wable vs District Jalgaon on 17 January, 2012
Bench: S. S. Shinde
Citation; 2012 (2) AIR BOM R 60
01. Heard the learned counsel for the parties.
2. Rule. Rule made returnable forthwith and heard with the consent of the parties, finally. 2 wp-3854.11
03. The petitioner herein is the original defendant and the respondent is the original plaintiff who filed R.C.S. No. 96 of 2007 in the Court of Civil Judge, Junior Division, Chalisgaon, for possession of the encroached area. On 28.9.2007, the petitioner-defendant appeared in the suit and filed his written statement, denying the contentions raised by the plaintiff in the suit. On 20.09.2008, the trial court framed the issues below Exhibit 15. It appears, thereafter, affidavit in lieu of examination-in-chief is filed by the respondent. The Advocate for the petitioner cross examined the respondent-plaintiff. The respondent has examined Taluka Inspector of Land Records, Chalisgaon, as his witness, on 26.8.2010 to prove the encroachment made on 23.7.2010. The said T.I.L.R. was cross examined by the learned counsel for the defendant, wherein it is the case of the defendant that in examination of the T.I.L.R., discrepancies occurred which show that the suit filed by the respondent is without any substance. 3 wp-3854.11
It is the case of the petitioner that the respondent filed an application at Exh. 39 for appointment of the Court Commissioner for filling in lacuna in the evidence. It is his further case that the said application is allowed by the trial court on 7.3.2011, in spite of vehement opposition by the petitioner on the ground that earlier, twice the measurement was carried out by the T.I.L.R. at the instance of the plaintiff-respondent and, therefore, according to the petitioner, after completion of the evidence, allowing such application for appointment of court commissioner, would prejudice the interest of the petitioner- defendant and no such order could have been passed.
04. The learned counsel appearing for the petitioner further submits that it is an admitted position that the land in question is measured by the officer of the rank of T.I.L.R. at the instance of the plaintiff and such measurements are on record and even the witness-T.I.L.R. is examined in 4 wp-3854.11
that respect before the court. Therefore, according to him, after examination of the T.I.L.R., the application filed by the plaintiff for appointment of another court commissioner, that too without making out any case that earlier measurement carried out by the T.I.L.R. was not in accordance with the rules, the trial court should not have allowed the said application. The learned counsel, therefore, would submit that allowing such application would mean to allow the plaintiff to fill in the lacuna in the evidence. The plaintiff's case should stand or fall on his own evidence and the trial court should not have allowed the application of the plaintiff at a belated stage, when recording of evidence in the matter was almost complete. Therefore, according to the learned counsel for the petitioner, the petition deserves to be allowed.
05. In support of his submission that no local investigation can be ordered to fill up certain lacuna, the learned counsel for the petitioner 5 wp-3854.11
placed reliance on reported judgment in the case of Shaikh Isak vs. State of Maharashtra, 2011 (3) Mh.L.J. 185, and submitted that the present petition be allowed.
06. On the other hand, the learned counsel for the respondent, relying upon written notes of arguments and also the judgment of this court in the case of Vijay Shrawan Shende vs. State of Maha. 2009 (5) Bom.C.R. 306, particularly on paragraph 38 of the said judgment, would submit that if earlier measurement is not carried out properly, in the suit for removal of encroachment, the proper and correct procedure and course would be to order re- measurement, and, therefore, taking into consideration the said judgment, the trial court has rightly passed the order of appointment of court commissioner. The matter is covered by the said authoritative pronouncement of this court and, therefore, this court may not interfere in the impugned judgment and order, in writ jurisdiction. 6 wp-3854.11
07. The learned counsel for the respondent further submits that even in case of Vijay (supra), this court, while dealing with the second appeal, was aware that earlier, the measurement was carried out, however, the court found that re-measurement was necessary and, accordingly, the second appeal was allowed, by remitting the matter back to the trial court for fresh measurement. Therefore, according to the learned counsel for the original plaintiff-respondent herein, this writ petition deserves to be dismissed.
08. I have given due consideration to the rival submissions. It is not in dispute that earlier, there was measurement of the suit property, at the instance of the plaintiff T.I.L.R. was appointed to measure the land. Not only this, but the T.I.L.R. carried out the measurement and same is placed on record. The T.I.L.R is examined by the plaintiff and is also cross examined by the defendant. At the stage, 7 wp-3854.11
when the suit is riped for final hearing, an application filed by the plaintiff came to be entertained and the trial court ordered fresh measurement in the matter.
09. In the present case, in fact, earlier measurement is carried out by the competent authority i.e. T.I.L.R. In the case of Vijay (supra), on which heavy reliance is placed by the learned counsel for the respondent, cadestral surveyor carried out earlier measurement and this court found it fit to direct the re-measurement by the authority of higher rank, namely, District Inspector of Land Records. However, in the present case, already measurement is carried out by the Taluka Inspector of Land Records, who is in charge of the office at Taluka level, and is also a gazetted officer.
10. In the present case, nothing is brought on record, to indicate that the plaintiff-respondent herein is aggrieved by earlier measurement carried 8 wp-3854.11
out by the T.I.L.R. Therefore, in absence of any grievance by the plaintiff about earlier measurement, the exercise done by the trial court to order re-measurement, by appointing the D.I.L.R., as court commissioner, is wholly unwarranted.
11. It appears that the trial court was influenced by the judgment of this court in Vijay's case (supra). However, the trial court failed to appreciate that in the said case, the cadestral surveyor measured the land at the first instance and, therefore, this court ordered re-measurement by the D.I.L.R. However, in this case, the T.I.L.R. has already measured the land, about which the plaintiff did not make any grievance and, therefore, in absence of such grievance, the trial court was not justified in allowing the application for re-measurement, that too when the recording of the evidence was almost complete.
9 wp-3854.11
12. In that view of the matter, the impugned order cannot be sustained and hence, the same is quashed and set aside. The trial court to proceed further with the hearing of the suit.
13. Writ petition stands disposed of in above terms and the rule is made absolute, accordingly. (S.S.Shinde, J)
pnd/wp-3854.11
No comments:
Post a Comment