Saturday, 9 February 2019

Procedure to be followed by court for deciding suit relating to encroachment on land

 Following  paragraph in Sulemankhan's Judgment is important.

“8. In cases to determine encroachment, it is always desirable to
have disputed suit property measured by competent surveyor to
find out encroachment and its extent. Oral evidence cannot prove
such contentious issue conclusively. In a suit where parties are
disputing boundaries of property and one of the parties alleges
encroachment made by another party to the suit inside suit
property. In such case the plaint map as evidence in respect
thereof is vital document for to decide real controversy between the
parties finally. This Court has time and again expressed opinion
about the necessity of duly drawn measurement plan/map in any
suit in which there is a boundary dispute. The Trial Court as well
as 1st Appellate Court which are Court of Facts, are duty bound to
ascertain that a map is drawn to the appropriate scale by
competent Government official from the office of TILR or DILR, as
the case may be, so that measurement of suit property is carried
out in presence of the parties after due notice to them or even if
they are absent, so as to ensure that the suit property is properly
measured, boundaries are fixed and boundary dispute is finally
settled by producing map in the Court by the plan maker who can
prove its genuineness by deposing in support of such plan/map, if
it is so necessary in the absence of admission for exhibiting the
map. The Trial Court can certainly raise presumption of accuracy
and genuineness of such map in view of Section 83 of the Evidence
Act if map is drawn by competent authority. (See : Ram Kishor

Sen & ors v. Union of India & ors reported in
MANU/SC/0052/1965 : AIR 1966 SC 644) Where such vital
document is duly produced, proved and established, necessary
detailed decree can be follow if there is any encroachment on the
suit property. As held by this Court in Vijay Shende's case (supra),
in such cases, fact of encroachment may be proved partly by oral
evidence although the extent of encroachment cannot be proved in
absence of public records without following due procedure
emerging from Section 36 and Section 60 of the Evidence Act. In
view of this recent judicial precedent referred to above, in the
larger interest of justice, when it appears that the trial Court as
well as 1st Appellate Court failed to follow proper procedure in this
regard to ascertain the boundaries of the suit property.”


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.562 OF 2005

Raghunath Kashinath Chavan, Vs  Sakharam Maroti Chavan,

CORAM : SMT. VIBHA KANKANWADI, J.

PRONOUNCED ON : 29th JANUARY 2019



1 Present appeal has been filed by original plaintiff. The
appeal was admitted on 08.12.2010 on following substantial questions of
law.
i) When the Cadestral Surveyor has found encroachment and
has stated that the encroachment is 1½ gunthas over the
share of the plaintiff and his brother each, then whether the
decree ought not to have been passed ?
ii) Whether the lower appellate Court while reversing the
finding of the trial Court, has come within the close quarters
of the reasonings of the trial Court ?
2 Name of respondent No.1 is deleted as per order of this
Court dated 18.12.2018 passed in Civil Application No.7575 of 2008.
Respondent No.2 is served, however, nobody has appeared on his behalf.
Heard learned Advocate Mr. S.S. Bora for the appellant. Perused the
Record and Proceedings. (Parties are addressed by their nomenclature
before Trial Court.)
3 Plaintiff has come with the case that he is the owner of 1
Acre 6 Gunthas land from agricultural land Sy.No.109 out of 1 Hectare 99

Ares from village Pimperkhed, Tq. Ashti, Dist. Beed. The property has
been more particularly described in para No.1 of the plaint. The said
land was belonging to the father of the plaintiff, who has left behind him
legal representative plaintiff
and his brothers Bhiwa and Babasaheb.
Father Kashinath partitioned the suit property during his lifetime and in
that partition plaintiff received the said land admeasuring 1 Acre 6
Gunthas. The eastern side land was kept by Kashinath for himself, then
towards western side, the land was allotted to Babasaheb and towards
West further the plaintiff's land and towards West of plaintiff's land there
was land of Bhiwa. It is stated that 18 Gunthas land out of land of
Kashinath was acquired by Government for Dhanora to Hiwara road.
Then Kashinath sold 12 Gunthas land on 22.01.1993 and 20 Gunthas
land on 16.05.1996 to one Shantabai, who is the wife of plaintiff.
Further, he had also sold 10 Gunthas land to one Maroti Raoji. Maruti
sold the same land to the plaintiff, Babasaheb and Sindhubai which is
adjacent to Dhanora road. Further, Bhiwa sold his 1 Acre 6 Gunthas land
to one Anusaya and Anusaya sold said land to defendant No.2. Thus,
according to the plaintiff, his land Sy.No.109 is adjacent to Sy.No.108 and
Sy.No.108 is towards southern side of Sy.No.109. The land of the

defendants and others is Sy.No.108. It is also stated that the width of the
common boundary between the land of the plaintiff and defendants was
5 feet. The defendants are cultivating the land jointly. The defendants
have demolished the common boundary mark in March, 1999 while
ploughing their land. When plaintiff had obstructed them, they did not
listen, therefore, plaintiff applied to Taluka Inspector of Land Records for
fixing the boundaries. Accordingly, the land was measured on
16.03.1999. It was revealed that the defendants have encroached upon 3
Gunthas of land of plaintiff and Babasaheb. The Cadestral Surveyor has
fixed the boundaries and had also affixed the boundary mark stones.
After the measurement the plaintiff had requested the defendants to give
possession of his half guntha of land out of 3 Gunthas of land, but they
refused on 10.09.1999, therefore, the suit was filed.
4 The Defendants have resisted the claim of the plaintiff by
filing written statement at Exh.16. The fact regarding partition of the
land by Kashinath, the situation after the partition, sale transactions by
Kashinath as well as others as narrated in the plaint have been admitted.
They admit the ownership over the suit land but denied the fact of
encroachment. They have denied that there was a common boundary of

five feet width between their land and the land of plaintiff. It is stated by
them that the land is not measured nor notices regarding the
measurement were given to them. It is stated that since the date of
partition, which had taken about 40 years ago, the situation is as it is.
5 Taking into consideration the said rival contentions, parties
went to trial, evidence has been led, plaintiff has examined himself as
well as the Cadestal Surveyor, who had carried out the measurement.
Defendants have examined defendant No.1 only. After considering the
evidence on record and hearing both sides the learned Trial Court has
decreed the suit. Defendants were directed to deliver possession of one
and half Guntha of land shown in red colour in the map.
6 Thereafter, defendants filed appeal bearing Regular Civil
Appeal No.76/2002 before District Court, Beed. Learned 3rd Adhoc
Additional District Judge, Beed has allowed the said appeal and set aside
the decree, that was passed by learned Civil Judge Junior Division, Ashti.
Hence, the present Second Appeal.
7 It has been submitted on behalf of the appellant that the
learned First Appellate Court failed to consider that the Cadestral

Surveyor was examined before the learned Trial Court and on the basis of
his evidence it was held that there is encroachment to the extent of 1½
Guntha of land belonging to the plaintiff. It was observed by the First
Appellate Court that as per Exh.27, it was clear that inspite of a fact that
the Surveyor had noticed the encroachment made by the owner of
Sy.No.108 over the owner of Sy.No.109 to the extent of 3 Gunthas
including the share of Babasaheb, he has not segregated the land
belonging to plaintiff and land belonging to Babasaheb. As Babasaheb
was not party to the proceeding, the learned First Appellate Court
reversed the decree, which is totally wrong on his part. It was also fairly
pointed out by the learned Advocate for the appellant that the Surveyor
had not measured Sy.No.108 which was belonging to the defendants.
8 Though the aforesaid two substantial questions of law have
been framed, what is transpiring from the evidence of Cadestral Surveyor
on which the plaintiff is heavily relying that he had not carried out the
measurement properly. When this question was pointed out to the
learned Advocate of the appellant, he fairly submitted that the
measurement was carried out prior to institution of the suit. There was
no attempt to get any Advocate or TILR appointed as Court

Commissioner to measure the land after the suit was filed. He also
submitted that there was no attempt on the part of First Appellate Court
to have measurement done even at appellate stage. There should have
been proper measures undertaken by both the Courts below to have
proper map on record. The parties had come to seek justice and therefore
all the powers of Courts ought to have been used. He placed reliance on
the decision in Kashinath Ramkrishna Chopade vs. Purushottam
Rulshiram Tekade & ors, 2005(6) Bom.C.R., 267, wherein it was
observed that, “It is clear that under Order XXVI Rule 9 of the Code of Civil
Procedure, the Court has the discretion to order local inspection or not. The
object of the local inspection is not so much to collect evidence which can be
taken in Court, but to obtain evidence which from its peculiar nature can
only be had on the spot. The cases of boundary disputes and disputes about
the identify of lands are instances when a Court should order a local
investigation under Order XXVI Rule 9 of CPC. In order to determine
whether there has been an encroachment, it is always desirable to get the
fields measured by an expert and find out the area encroached upon”.
The said decision is later on followed in Kolhapuri Bandu
Lakade vs. Yallappa Chinappa Lakade, deceased, through Pooja @ Poojari  Y. Lakade & ors., 2011(3) Bom.C.R., 807.
9 Further, reliance has been placed on the observations in
Sulemankhan and ors. vs. Bhagirathibai and ors., 2014(4) Mh.L.J.,
250, wherein it is stated that, “This Court has time and again expressed
opinion about the necessity of duly drawn measurement plan/map in any
suit, in which there is a boundary dispute. The Trial Court as well as First
Appellate Court, which are Court of facts, are duty bound to ascertain that
a map is drawn to the appropriate scale by competent Government official
from the office of TILR or DILR, as the case may be, so that measurement of
suit property is carried out in presence of the parties after due notice to
them or even if they are absent, so as to ensure that the suit property is
properly measured, boundaries are fixed and boundary dispute is finally
settled by producing map in the Court by the plan maker who can prove its
genuineness by deposing in support of such plan/map, if it is so necessary in
the absence of admission for exhibiting the map”.
Based on these observations the learned Advocate prayed for
remand of the matter with necessary directions.
10 Here, in this case, the plaintiff got the land measured on

16.03.1999 and suit was filed on 23.09.1999. That means prior to the
filing of the suit, he had applied to the TILR for fixing boundaries of the
land Sy.No.109. The land of the defendants was Sy.No.108. It appears
that the TILR measured only Sy.No.109. He did not measure Sy.No.108.
Therefore, without fixing of the boundaries, it appears that the said
measurement was carried out; which can be said to be a defective
measurement, though the suit was decreed earlier. The learned First
Appellate Court, first of all, failed to consider that the measurement was
not properly done and therefore, he ought to have exercised his
jurisdiction to appoint Court Commissioner under Order XXVI Rule 9 of
CPC and get the measurement properly done. However, the appeal came
to be allowed on the ground that the brother of the plaintiff is not party
to the suit and without him proper demarcation has not been done. It
was also observed that when the encroachment is stated to have been
made to the extent of 3 Gunthas, plaintiff cannot ask for removal of his
half share i.e. 1½ Guntha only. Thus, there is substance in the arguments
advanced on behalf of the appellant that both the Courts have not
exercised their jurisdiction judiciously and had not tried to bring on
record an agreeable measurement to resolve the dispute. Following

paragraph in Sulemankhan's Judgment is important.
“8. In cases to determine encroachment, it is always desirable to
have disputed suit property measured by competent surveyor to
find out encroachment and its extent. Oral evidence cannot prove
such contentious issue conclusively. In a suit where parties are
disputing boundaries of property and one of the parties alleges
encroachment made by another party to the suit inside suit
property. In such case the plaint map as evidence in respect
thereof is vital document for to decide real controversy between the
parties finally. This Court has time and again expressed opinion
about the necessity of duly drawn measurement plan/map in any
suit in which there is a boundary dispute. The Trial Court as well
as 1st Appellate Court which are Court of Facts, are duty bound to
ascertain that a map is drawn to the appropriate scale by
competent Government official from the office of TILR or DILR, as
the case may be, so that measurement of suit property is carried
out in presence of the parties after due notice to them or even if
they are absent, so as to ensure that the suit property is properly
measured, boundaries are fixed and boundary dispute is finally
settled by producing map in the Court by the plan maker who can
prove its genuineness by deposing in support of such plan/map, if
it is so necessary in the absence of admission for exhibiting the
map. The Trial Court can certainly raise presumption of accuracy
and genuineness of such map in view of Section 83 of the Evidence
Act if map is drawn by competent authority. (See : Ram Kishor

Sen & ors v. Union of India & ors reported in
MANU/SC/0052/1965 : AIR 1966 SC 644) Where such vital
document is duly produced, proved and established, necessary
detailed decree can be follow if there is any encroachment on the
suit property. As held by this Court in Vijay Shende's case (supra),
in such cases, fact of encroachment may be proved partly by oral
evidence although the extent of encroachment cannot be proved in
absence of public records without following due procedure
emerging from Section 36 and Section 60 of the Evidence Act. In
view of this recent judicial precedent referred to above, in the
larger interest of justice, when it appears that the trial Court as
well as 1st Appellate Court failed to follow proper procedure in this
regard to ascertain the boundaries of the suit property.”
11 Therefore, it is not necessary for this Court to consider other
facts in this case. Under the said circumstance, there is no necessity to
proceed to answer the substantial questions of law framed earlier. In fact,
the impugned Judgments and Decree passed by the Courts below have
resulted into miscarriage of justice and in such circumstances, there is no
alternative except to remand this suit to the Trial Court with directions to
appoint the Commissioner/Surveyor from the office of DILR Beed or any
such officer nominated by him for the purpose of local investigation
under Order 26, Rule 9 of the Code of Civil Procedure. Hence following

order.
ORDER
1. In such circumstances, the appeal is allowed.
2. The judgments and decrees passed by the Courts
below are set aside and the suit is remanded to the
Trial Court for fresh decision in accordance with law
and in the light of the observations made hereinafter.
3. The Trial Court is directed to appoint the Surveyor
from the office of DILR Beed or any TILR having
jurisdiction over the village in which suit land is
situated, for the purpose of local investigation under
Order 26, Rule 9 of the Code of Civil Procedure.
4. Parties are directed to remain present before the Trial
Court on 11.02.2019. If, defendants fail to appear on
that day, Trial Court should issue notice and secure the
presence of defendants by serving notice on them.
5. The plaintiff is directed to submit his application

before the Trial Court within two weeks from the date
of appearance of both the parties for appointment of
Court Commissioner.
6. Such appointed Commissioner shall conduct local
investigation in accordance with the provision of
Order 26, Rule 9 of the Code of Civil Procedure, after
giving due notice to the parties and take the
measurements of the property owned by the parties
after taking into consideration the title deeds of the
parties, if any and shall also demarcate the boundaries
of the property by noting down the actual
measurements in the joint measurement map itself by
showing the precise and concise area under
encroachment, if any, and then shall submit the map
and report to the trial Court, within a period of two
months thereafter.
7. The Trial Court shall decide the matter expeditiously
and preferably within six months from the receipt of
report of the Court Commissioner.

8. The record and proceedings be sent immediately to
the trial Court.
9. If the plaintiff does not submit his application for
appointment of the Commissioner within aforesaid
period, the suit shall stand dismissed.
10. Parties to act on authenticated copy.
( Smt. Vibha Kankanwadi, J. )

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