Be that as it may, when the suit is filed for removal of
encroachment from and for the possession immovable
property, the plaintiff is required to take care to comply with
Order VII Rule 3 of the Code of Civil
Procedure so as to
describe the suit property which is subject-matter of the suit
sufficiently so as to identify appropriately with boundaries
thereof.
The plaintiff must be careful to describe the
property by its boundaries, Survey Number/Gat Number with
area mentioning the boundaries on North, East, West and
south
Without such description, the
of the suit property.
trial Court may not be assisted properly by the plaintiff to
pass an effective decree if it is passed for the removal of
encroachment from the suit land/property in such cases.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Second Appeal No.123 of 2013
Laxman Wamanrao Nagapure, Vs Shankar Haribhau Adhau,
CORAM : A. P. BHANGALE, J.
: APRIL 09, 2014.
Citation; 2014(3) MHLJ791 Bom
order dated 6.8.2012, passed by the learned District Judge-I,
Akot, in Regular Civil Appeal No.25 of 2009, whereby the
appeal was dismissed, which arose from judgment and order
dated 18.6.2007, passed
by the learned Joint Civil Judge
Junior Division, Telhara, in Regular Civil Suit No.73 of 2005,
whereby the suit was decreed for possession of alleged
encroachment portion of 25R land out of Survey No.47/7-A
admeasuring about 2.64R claimed as belonging to the
plaintiff. The agricultural land is situated at village Telhara
(Bk.), Taluka Telhara, District Akola.
2.
The substantial question of law is to be decided,
"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?
3.
The grievance of Shri A.B.Mirza, learned counsel
appearing for the appellant, is that in the trial Court the
plaint did not describe the disputed immovable property as
required under Order VII Rule 3 of the Code of Civil
Procedure even in the absence of full description as required
by law in the plaint, the learned first appellate Judge and the
trial Judge proceeded to decree the suit for alleged
encroached portion.
4.
The reference is made, by Shri A.B.Mirza, learned
counsel appearing for the appellant, to the previous ruling
by this Court, in the case of Manohar Mahadeorao Pagrut
Sau. Sunanda Ramdas Tharkar, reported at
..vs..
[2008]3 BomCR 4 in which this Court had considered the
principle in such cases in paragraph Nos.7 and 8, as quoted
below, thus :
“7 :- Normally, if the measurement is done
by a cadastral surveyor for ascertaining
the encroachment and at that time only
both the lands are measured on the basis
of permanent boundary marks or admitted
boundary marks, any question of further
evidence would not arise.
8 : - Admittedly, in the present case,
when the cadastral surveyor admits that
on two sides, which are, in fact, the sides
of the then alleged encroachment, the
boundary marks are not found. To have a
correct approach for ascertaining the area
of actual possession and then finding
whether there was an encroachment, it is
necessary that both the lands should be
measured, exact dividing boundary line
should be located and it can be found out
whether
the
party,
against
whom
encroachment is alleged, has excess land
in possession.
If the finding could be
otherwise, the story of encroachment
would not be proved may be that the
plaintiff has lost her land and the said loss
could be due to encroachment by any
person owning land surrounding the
plaintiff’s land.”
Thus, in order to ascertain the encroachment over
Surveyor
immovable property if suit land is measured by a Cadastral
concerned
on
the
basis
of
the
permanent
boundary marks or admitted boundary marks, then there
would be no requirement of further evidence in the case.
5.
Thus, a Cadastral Surveyor fixing the boundary marks
need to ascertain the actual physical possession of the suit
land and to find out whether the suit land is encroached
upon which may be indicated in the measurement map/plan
drawn on the scale.
6.
Thus, fact finding regarding removal of encroachment
based on measurement done by the Cadastral Surveyor
becomes easy more so when the actual measurement and
the fixation of boundary marks are carried out in the
presence of land owners concerned or those who are in
possession of adjoining lands.
In the absence of any
map/plan drawn by the Competent Surveyor, the trial Court
in such cases may appoint a Court Commissioner in order to
ascertain boundaries of the suit field and then to decide
whether on the basis of the evidence led before it any
encroachment was made. If so, decree may be passed for
removal of encroachment, if any, found on the basis of
measurement plan/map drawn by the competent survey
Official to the appropriate scale.
7.
The reference is also made, by Shri Mirza, learned
counsel appearing for the appellant, to the ruling in the case
of Sou. Ashatai w/o Vijayrao Warekar & ors.
..vs..
Champatrao Laxmanrao Kale & anr reported at 2011(5)
ALL MR 658.
Ratio of the decision is that the trial Court
can appoint the Court Commissioner in such a case wherein
adjudication
is
required
regarding
boundary
marks,
as
claimed
consequential order
for
was
made
removal
and
to
pass
encroachment
boundaries of the suit field to ascertain whether the
of
encroachment.
Therefore, it is desirable in such cases of disputed boundary
marks to carry out the measurements and to determine the
boundaries of the suit field area, if any, encroached upon so
that on the basis of the measurement map and other
relevant evidence on record, the fact of encroachment is
found, and then necessary consequential order is passed for
removal of encroachment, from the suit land duly measured.
8.
Another ruling is relied upon, by Shri Mirza, learned
counsel appearing for the appellant, in the case of
..vs..
Pramilabai
Niranjanabai Chandrakant Vira
Balkrishna Zade and another reported at [2004] 6
Bom.CR 829 to argue that in such cases when joint
measurements were not carried out in the presence of all
the parties concerned, the case may be remanded so that
accurate map/plan is brought on record of the case, on the
basis of which the Court may draw presumption in view of
Section 83 of The Indian Evidence Act, 1872.
Thus, if map/plan drawn by a competent Official such
as the Taluka Inspector of Land Records or the District
Inspector of Land Records or the Competent Surveyor
deputed by the Central or the State Government’s office
concerned and when such map/plan is drawn in respect of
the disputed property for fixation of boundary marks or for
denoting the encroachment, if any, the Court can draw
presumption about the accuracy of such map in evidence so
that the decree can be effectively executed in such cases.
Of course, the Competent Surveyor is required to take
appropriate legal steps to carry out the measurement of the
disputed
property.
In
the
ruling
of
Niranjanabai
Chandrakant Vira’s case cited (supra), the second appeal
was allowed and the proceeding was remanded to the trial
Court for fresh decision according to law.
9.
As against above rulings, Shri D.S.Amle, learned
counsel appearing for the respondents, also invited my
attention to the recent ruling in the case of
Manikrao
Ramji Chawake ..vs.. Ashok Ambadas Gawande and
another reported at 2014(2) Mh.L.J. 840 this Court had
considered the substantial question of law as to whether it is
essential to get the map in respect of the disputed
agricultural land prepared by the Court Commissioner and
the substantial question of law was answered in the
affirmative because in cases of dispute as to boundary or
boundary marks of the immovable property when the
parties do not agree to any map produced on the record, it
is essential for the trial Court or the first appellate Court as
final Court on finding of facts to insist that a competent
Cadastral Surveyor is appointed as the Court Commissioner
to prepare measurement map in respect of the suit property
so that after receiving authentic map/plan drawn by the
competent Official on behalf of the Central or the State
Government as the case may so that the trial Court is
assisted meaningfully with a view to effectively and properly
execute the decree for removal of encroachment. Effective
execution of the decree is facilitated on account of map/plan
drawn by the Competent and expert Official so as to set at
naught the real controversy between the parties.
precedents
Jagtap
in
the
cases
of
Ramchandra
This Court made reference to the earlier judicial
Bhikaji
10.
..vs..
Dudharam Langruji Padvekar (dead)
through L.Rs Bulkabai Padvekar and ors. reported at
2004(1) Mh.L.J. 278 and Ushabai w/o Sharadchandra
..vs..
Wasudeo s/o Baliramji Mehare and
Bannore
ors., reported at 2004(2) Mh.L.J. 594 and after setting
aside the impugned judgment and order in respect of
Manikrao Ramji Chawake cited (supra) the proceeding was
remanded to the trial Court to take further evidence and
then to decide the controversy afresh and finally on merits
according to law.
In another ruling by this Court in the case of
11.
Sulemankhan s/o Mumtajkhan and others ..vs.. Smt.
Bhagirathibai wd/o Digambar Asalmol, Second Appeal
No.45 of 2013, decided on 2.4.2014, the identical
substantial question of law was considered regarding
necessity of measurement of the suit land and adjoining
lands, if so necessary to determine encroachment, if any,
and to pass a decree on the basis of legal evidence in this
12.
regard.
In the case of Sulemankhan s/o Mumtajkhan and
others ..vs..
Smt. Bhagirathibai wd/o Digambar Asalmol,
cited (supra) also this Court considered that it is desirable
that the learned 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 who may be competent Official from
the Taluka Inspector of Land Records or the District
Inspector of Land Records who can secure copies of the
necessary public records relating to Gat/Survey Number
concerned to settle the boundaries of the suit properties by
carrying out the measurement after due notice to the
parties to the suit as also adjacent owners/possessors of the
suit properties so as to report to the trial Court with a
detailed map to meaningfully assist the trial Court to decide
the suit and pass an effective executable decree in such
case.
13.
In the present case, it appears that the plaintiff had
claimed possession of encroached portion of agricultural
land bearing Survey No.47/7-A admeasuring about 2.64R
situated at village Telhara (Bk.), Taluka Telhara, District
Akola. According Shri Mirza, learned counsel appearing for
the appellant, the map was drawn by the Taluka Inspector of
Land Records concerned but notice was not issued to the
appellant /defendant while according to Shri Amle, learned
Counsel appearing for respondents, son of defendant No.1
by name Chandrakant was present and had refused to sign
the measurement record in respect of the plan drawn by the
Taluka Inspector of Lands Records concerned.
14.
Be that as it may, when the suit is filed for removal of
encroachment from and for the possession immovable
property, the plaintiff is required to take care to comply with
Order VII Rule 3 of the Code of Civil
Procedure so as to
describe the suit property which is subject-matter of the suit
sufficiently so as to identify appropriately with boundaries
thereof.
The plaintiff must be careful to describe the
property by its boundaries, Survey Number/Gat Number with
area mentioning the boundaries on North, East, West and
Without such description, the
South of the suit property.
trial Court may not be assisted properly by the plaintiff to
pass an effective decree if it is passed for the removal of
encroachment from the suit land/property in such cases.
In the present case, a plaint in Regular Civil Suit No.73
15.
of 2005 instituted in the Court of Civil Judge Junior Division,
Telhara, mentioned only Survey Number and area but did
not describe the suit land sufficiently by its boundaries on
North, East and West.
The plaintiff may after such
description mention as to how much area is encroached
upon approximately by the defendants in respect of which
possession
is sought and with or without consequential
relief of damages and/or mesne profits under Order XX Rule
12 of the Code of Civil Procedure. It appears that the Courts
below overlooked the legal requirement in the plaint under
Order VII Rule 3 of the Code of Civil Procedure. The trial
Court could have insisted upon sufficient and full description
in respect of the suit property in such case.
16.
For the reasons stated, and in view of the rulings cited
(supra), the substantial question of law is already settled as
it is necessary in such cases for the trial Court to insist upon
sufficient description of the immovable property by its
boundaries and further to insist upon the measurement
plan/map drawn by the competent Official from the office of
the Government concerned, I must allow this second appeal
by setting aside the impugned judgments and orders passed
by the first appellate Court and the trial Court with further
direction to the trial Court to allow opportunity of amending
the plaint to the plaintiff so as to comply with Order VII Rule
3 of the Code of Civil Procedure and to allow the parties to
lead further evidence as it may deem fit in respect of the
boundary dispute to ascertain the fact of encroachment, if
any, after proper measurement and fixation of boundaries in
the suit land; on the basis of further evidence as the trial
Court may require and allow to ascertain the encroachment
to decide the suit and to pass the decree in accordance with
law on merits.
17.
In the result, Second Appeal No.123 of 2013 is hereby
allowed in terms of above order. The impugned judgment
and order dated 6.8.2012, passed by the learned District
Judge-I, Akot, in Regular Civil Appeal No.25 of 2009, and
judgment and order dated 18.6.2007, passed
by the
learned Joint Civil Judge Junior Division, Telhara, in Regular
Civil Suit No.73 of 2005, are set aside.
The parties shall approach before the trial Court on
28.4.2014. The trial Court shall allow the parties to adduce
further evidence as it may deem fit and then shall decide
the suit on its own merits in accordance with law.
There
shall be no order as to costs.
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