Friday, 15 April 2016

Whether court should appoint commissioner in case of encroachment?

 This Court has taken a view that when it is a case of
encroachment, it is always open to the Court in exercise of powers under
Order 26 rule 9 of the Civil Procedure Code to appoint a Commissioner 
to examine the alleged claim of the parties based on the document of title
of both the parties. In the present case, the appellants are claiming to be
the owners of the property based on the Sale Deed of the year 1916.
Respondents no. 1, 4 to 12 also claim title based on the same Sale Deed
which is also of the year 1916. The properties purchased by the
respective parties or their ancestors are also depicted in the
Communidade plan at Exhibit 28. All these documents would have to be
reconciled to examine whether there is in fact any encroachment as
claimed by the appellants. Prima facie, on perusal of the Communidade
plan at exhibit 28 and the survey plan, I find that the claim of the
appellants cannot be lightly discarded. But however, this exercise will
have to be examined only after appointing a Commissioner in terms of
Order 26 rule 9 of the Civil Procedure Code to visit the disputed property
and examine whether in fact there is any encroachment claimed by the
appellants. No doubt, after such report is produced the parties can cross
examine such Commissioner if they so desire in accordance with law.
The Lower Appellate Court will have to take a fresh decision as to
whether the appellants are entitled for any relief as prayed for.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO.81 OF 2006
 Mrs. Fatima Gomes Furtado,

Versus
 Smt. Indirabai Vinayak Lotlikar,

CORAM : F.M. REIS, J.
DATE : 4th SEPTEMBER, 2015
Citation; 2016(2) MHLJ905

2. The above appeal came to be admitted by an order dated
13/11/2009 on the following substantial questions of law:
a) Whether the Lower Appellate Court could have
reversed the Decree passed by the learned Trial
Court after holding that the Appellants' predecessor
in title vide Deed of Sale dated 17.01.1916
purchased the suit property in as much as pursuant
to such Deed of Sale, the Appellants proved the
title to the suit property and it was incumbent upon
the Lower Appellate Court to decree the suit in
terms of prayer clause (b) for declaration and
further direct demarcation of the suit property in
terms of prayer clause (aa),
b) Whether in view of the clear Title Deed viz.
Deed of Sale dated 17.01.1916 and the plan of the
Communidade showing the purchase made by the
Appellants, could the Lower Appellate Court deny
Decree of demarcation of the suit property?
d) Whether the findings of the Lower Appellate
Court that the Appellants admit ownership of the
Respondents in respect of Survey Nos.39/14 and
39/15 are perverse and contrary to the pleadings
and evidence on record?
e) Whether the Lower Appellate Court has
committed jurisdictional error by not following the
ratio laid down by the Honourable Supreme Court
in the case of Santosh Hazare V/s Purshottam
Tiwari, reported in (2001) 3 SCC 179, which
enjoins the Appellant Court to come in close
quarters with the findings given by the Trial Court
while reversing the same?
3. On the last date of hearing, when the matter was argued, the
parties were also put to notice that an additional substantial question of
law would be framed if the matter was heard on merits. Accordingly, the
following additional substantial question of law was framed:
“Whether, in terms of the provisions of Order
XXVI, Rule 9 of CPC, 1908 and the law laid down
by the Hon'ble Apex Court as well as by this Court
in respect thereof, the Courts below were duty
bound to appoint a Commissioner to conduct
inspection at loco, the suit being filed by the
appellant on account of encroachment by the
respondents in the property of the appellant and
having failed to do so, the Judgments and Decrees
are liable to be quashed and set aside?
4. When the matter was heard on the last date of hearing, considering
that ultimately the alleged claim of the appellants was around 50 square
metres, opportunities were given to the parties to explore the possibility 6 SA No.81 of 2006
of settlement and consider whether the dispute could be resolved on
payment of compensation to the appellants. But however, despite of
opportunities given by this Court, the learned Counsel appearing for the
respective parties have pointed out that no settlement could be arrived at
and, as such, the matter was heard on merits.
5. Mr. P. Rao, learned Counsel appearing for the appellants pointed
out that the source of title of the appellants is based on the Sale Deed
dated 17/01/1916 whereby the predecessor in title of the appellants had
purchased the disputed property from the original owner of the property.
The learned Counsel further points out that the appellants is the grandson
of the original purchaser and, as such, he is entitled for an area of 100
square metres as disclosed in such Sale Deed. The learned Counsel
further points out that it is not disputed that the said Sale Deed is
pertaining to the disputed property claimed by the appellants, but
however, according to the learned Counsel a portion of the property
belonging to the appellants is wrongly surveyed in the record of rights
under Survey No.39/14 and 39/15. The learned Counsel further points
out that though the appellants have purchased an area of 100 square
metres only an area of 50 square metres is recorded in the name of the
appellants in survey record in respect of the property surveyed under
no.39/19. The learned Counsel further pointed out that once the title of 7 SA No.81 of 2006
the appellants has been duly established the burden is shifted on the
respondents to show as to how the area purchased by the appellants has
been reduced from 100 square metres to 50 square metres. The learned
Counsel further points out that even as per the documents produced by
the respondents the area purchased by the respondents no.1, 4 to 12
admeasure an area of 522 square metres when the survey record
discloses 550 square metres. The learned Counsel, as such, submits that
this portion of property is located on the eastern side of the property of
the appellants which prima facie discloses that the area of 28 square
metres is encroached by the respondents no.1, 4 to 12. The learned
Counsel further pointed out that the remaining portion of the property
encroached is on the northern side which is recorded in the name of
respondent no.14 and surveyed under no.39/14. The learned Counsel
further submits that even on perusal of the Communidade plan at Exhibit
28, if one superimposes the said plan on the actual survey plan under the
Land Revenue Code it clearly depicts that in fact there is an
encroachment towards the eastern and northern side of the property of
the appellants aggregating an area of 50 square metres. The learned
Counsel further pointed out that the learned Trial Judge upon
appreciating the evidence on record and examining the documents
produced by the parties had in fact decreed the suit of the appellants inter
alia granting a declaration that the appellants are the owners of the 
disputed property and granted the consequential reliefs. The learned
Counsel further points out that the Lower Appellate Court has
misconstrued the documents produced by the appellants and has
erroneously come to the conclusion that there is no foundation in the suit
to claim that a specific area of the property belonging to the the
appellants was encroached by respondents no. 1, 4 to 12 and respondent
no.15. The learned Counsel further pointed out that it is well settled that
only facts have to be pleaded and not the evidence and on perusal of the
pleading there is a specific averment in the plaint to the effect that there
is an encroachment of the property of the appellants towards the eastern
and northern side in the property surveyed under no.39/14 and 39/15.
The learned Counsel, as such, submits that Lower Appellate Court has
erroneously construed the plaint to come to the conclusion that the
evidence is contrary to the pleadings in the suit. The learned Counsel
further pointed out that it is well settled that in case of the encroachment
the Court has to appoint a Commissioner in terms of Order 26 of the
Civil Procedure Code and in support of the said submission the learned
Counsel relied upon two judgments of the learned Single Judge of this
Court one dated 6/12/2013 in Second Appeal No.24/2004 and judgment
passed by this Court in Second Appeal No.71/2005 dated 1/07/2014.
The learned Counsel, as such, submits that the additional substantial
question of law may accordingly be answered in favour of the appellants
and the matter be remanded to the Lower Appellate Court to appoint a
Commissioner and proceed to decide the appeal preferred by the
respondents after hearing the parties in accordance with law.
6. On the other hand, Mr. J. Godinho, learned Counsel appearing for
respondents no. 1, 4 to 12 has supported the judgment passed by the
Lower Appellate Court. The learned Counsel has taken me through the
finding of the learned Judge at para 37 of the impugned judgment to
point out that the learned Judge has clearly come to the conclusion that
there is no pleading in the plaint to contend that a specific area of the
property belonging to the appellant was encroached by the respondents
no.1, 4 to 12. The learned Counsel further pointed out that only in the
evidence of PW1 it was sought to be claimed by the appellants that an
area of about 28 square metres belonging to the appellants is located in
the property surveyed under no.39/15 standing in the name of
respondents no.1, 4 to 12. The learned Counsel further pointed out that
as this evidence is inconsistent with the pleadings the Lower Appellate
Court has rightly rejected the case of the appellants. The learned
Counsel further pointed out that in terms of the provisions of the Civil
Procedure Code it is now well settled that the party who claims that there
is an encroachment into his property has to file a plan clearly identifying
the location of such area. The learned Counsel further points out that 
such exercise has not been done by the appellants. The learned Counsel
as such pointed out that it is not open for this Court to now assist the
appellants to appoint a Commissioner and procure evidence in support of
the case of the appellants. The learned Counsel, as such, submits that
the substantial question of law framed by this Court has to be answered
in favour of the respondents.
7. Respondents no.2,3,13 & 14 though served have remained absent.
8. I have duly considered the submissions of the learned Counsel and
have also gone through the records. The main contention of respondents
no. 1, 4 to 12 is that the Lower Appellate Court has rightly come to the
conclusion that the location of the alleged encroachment claimed by the
appellants has only been identified during the course of the evidence of
PW1 and that there is no foundation to that effect in the plaint. Such
finding of the learned Judge cannot be accepted as the Lower Appellate
Court itself whilst recording the claim of the appellants has observed that
the plaint has clearly stated at para 36 that the appellants' claim that the
property belonged to the appellants admeasuring 100 square metres and
that the property surveyed in the name of the appellants under no.39/19
admeasures only 50 square metres and that the remaining 50 square
metres are wrongly recorded in the survey records under no.39/14 and 
39/15. A plain reading of the said averments in the plaint and the
contents of the said paragraph would clearly suggest that there was
sufficient foundation in the pleadings to contend that there was an
encroachment in the property belonging to the appellants which is partly
located in survey no.39/14 and partly in the property under survey
no.39/15. As such, the contention of Mr. Godinho that there is no
foundation in the pleadings to contend that there is an encroachment
located in the property surveyed under no.39/15 cannot be accepted. The
learned Single Judge of this Court whilst disposing of the said Second
Appeal has observed at para 19 and para 21 thus:
21. No doubt that in the present case, application for
appointment of Court Commissioner was not made.
However, it is to be noted that before the learned
Trial Judge three experts' reports were available.
Two were in support of the plaintiff's plea and one in
support of defendants' claim. The learned Trial Judge
had decreed the suit relying on the experts' evidence.
However, the Appellate Court disbelieved the
experts' evidence on behalf of the plaintiff as well as
the defendants. In that view of the matter, there was
no expert's evidence available before the Appellate
Court. In the circumstances, it was necessary on the
part of the learned Appellate Court to remit the
matter to the learned Trial Court appointing an
expert as a Commissioner for doing the local
investigation.
9. This Court has taken a view that when it is a case of
encroachment, it is always open to the Court in exercise of powers under
Order 26 rule 9 of the Civil Procedure Code to appoint a Commissioner 12 SA No.81 of 2006
to examine the alleged claim of the parties based on the document of title
of both the parties. In the present case, the appellants are claiming to be
the owners of the property based on the Sale Deed of the year 1916.
Respondents no. 1, 4 to 12 also claim title based on the same Sale Deed
which is also of the year 1916. The properties purchased by the
respective parties or their ancestors are also depicted in the
Communidade plan at Exhibit 28. All these documents would have to be
reconciled to examine whether there is in fact any encroachment as
claimed by the appellants. Prima facie, on perusal of the Communidade
plan at exhibit 28 and the survey plan, I find that the claim of the
appellants cannot be lightly discarded. But however, this exercise will
have to be examined only after appointing a Commissioner in terms of
Order 26 rule 9 of the Civil Procedure Code to visit the disputed property
and examine whether in fact there is any encroachment claimed by the
appellants. No doubt, after such report is produced the parties can cross
examine such Commissioner if they so desire in accordance with law.
The Lower Appellate Court will have to take a fresh decision as to
whether the appellants are entitled for any relief as prayed for.
10. In view of the above, I find it is appropriate that the impugned
judgment passed by the Lower Appellate Court be quashed and set aside
and the matter be remanded to the Lower Appellate Court to decide the 13 SA No.81 of 2006
appeal afresh in the light of the observations made herein above after
appointing the Commissioner in terms of Order 26 Rule 9 of the Civil
Procedure Code. The Lower Appellate Court may accordingly direct the
Inspector of Survey and Land Records to depute a competent Surveyor
to be appointed as a Commissioner to identify the disputed property
belonging to the appellants and the respondents and submit the report to
the Lower Appellate Court. The costs of such Commissioner shall be
borne by the appellants. The substantial questions of law are answered
accordingly.
11. In view of the above, I pass the following order:
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment and decree dated
12/04/2006 passed by the Lower Appellate Court is
quashed and set aside.
(iii) The Regular Civil Appeal No.115/04 is
restored to the file of the Lower Appellate Court.
(iv) The Lower Appellate Court is directed to
decide the said appeal afresh in the light of the
observations made herein above after appointing the
Commissioner as stated herein above.
(v) The appeal is disposed of with no order as to
costs.
(vi) The parties are directed to appear before the
Lower Appellate Court on 12/10/2015 at 10.00 a.m.
(vii) All contentions of both the parties on merits
are left open.
F.M. REIS, J.
NH/-
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