How to appreciate evidence regarding fact and extent of encroachment in suit for removal of encroachment?

 The Cadesteral Surveyor, therefore, will have first to ascertain the boundary marks and boundaries of undisputed and unencroached area of the land, based on undisputed boundary marks, as seen in the public record, and thereafter measure the extent of encroachment. {Para 35}

36. If such report of the Commissioner is proved, as rendered, keeping in view the requirements of rules relating to measurement and if it withstands the test of cross-examination, unless admitted document, alone can be the foundation as to proof of fact and of extent of encroachment.

37. In the present case, the procedure, as emerging from foregoing discussion, has not admittedly been adopted.

38. The Substantial Questions of Law are answered as follows:

Answers to Substantial Questions of Law Nos. [1] and [2]:

[i] Fact of encroachment may be proved partly by oral evidence;

[ii] the extent of encroachment cannot be proved in absence of public records and procedure emerging from Section 36 and Section 60 of Evidence Act;

[iii] it would be impermissible to record a finding as to the fact and extent of encroachment, if any, without ascertaining the fact and extent of encroachment by measurement, based on public record and undisputed and/or settled boundaries of respective lands and measurement of surrounding lands, as may be required.

Answer to Substantial Question of Law No. [3]:

[v] 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 re-measurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadesteral Surveyors are not attributable to parties to the suit.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 97 of 2009

Decided On: 04.05.2009

Vijay shrawan shende and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.H. Joshi, J.

Citation: 2009 (5) MHLJ 279,MANU/MH/0370/2009.

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