PROOF OF FACT OF ENCROACHMENT
24. If there be undisputed boundaries, encroachment can be a question or a matter of fact, which can be seen by a person where encroachment was witnessed. Fact of encroachment also could be a matter of oral evidence, if the admitted boundaries are destroyable, and have been destroyed in presence of witness by the party making the encroachment.
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
1. This is a Second Appeal by unsuccessful plaintiffs, who lost in both Courts below.
2. Heard learned Adv. Mr. A.V. Bhide for the appellants, learned AGP Mr. D.P. Thakre for respondent Nos. 1 to 3 and learned Adv. Mr. S.C. Bhalerao for respondent No. 4, since notice was issued.
3. After hearing parties, perusal of impugned judgments, pleadings and other record tendered for perusal, this Court finds that appeal deserves admission on certain Substantial Questions of Law.
4. This Court, therefore, frames following Substantial Questions of Law:
[1] Is it permissible for any Court to record a finding about encroachment in absence of fact as to encroachment and extent thereof being ascertained on the basis of authentic public record and with regard to authentic boundaries?
[2] Have the parties to suit exerted to prove and disprove respective cases by legal evidence as to fact of encroachment alleged?
[3] If a party to suit proves the act of encroachment, but fails to prove extent thereof by legal evidence, will it be open to the Court to astutely dismiss the suit, or cause proper local enquiry and render a fresh report under Order 26, Rule 9 of Civil Procedure Code, and secure on record report of legal evidence as to fact of matter about encroachment, or otherwise as to the allegation in plaint and fact of encroachment proved by the party to suit?
5. Considering that the matter would require adjudication only on law and on admitted facts, the defendants were called upon to explain as to what purpose would be served by keeping the appeal pending.
6. Both parties before the Court have agreed for taking the appeal for final disposal immediately. Therefore, by consent of parties, the appeal is heard for final disposal.
Facts
7. The version in the plaint is summarized as follows:
[a] Plaintiff Nos. 1 and 2, who are respectively son and mother, own land Gat No. 144, admeasuring 1 hectare 29 Are, and had planted 86 teakwood plants in the said land which had matured for harvest.
[b] Plaintiff No. 3 owns land Gat No. 143 admeasuring 23 acres and 17 Gunthas, and Gat No. 145/1 admeasuring 1 acre and 31 Are, which is an ancestral property.
[c] Husband of plaintiff No. 3 had sold to defendant No. 4, 2 hectares 33 Are land from South-West corner of Gat No. 145.
[d] In the disguise of measurements and alleging that encroachment was found to have been done by the plaintiffs on the land of defendant No. 4, he got the area belonging to the plaintiffs' land recorded in his name, and based thereon, got cut off and harvested teakwood plants owned by the plaintiffs in their land.
[e] Plaintiffs, therefore, filed a suit for removal of encroachment and injunction etc.
8. Defendant No. 4 disputed the claim by filing Written Statement, and claimed to be genuinely in possession and ownership of land belonging to him. Defendant No. 4 also filed a Counter-claim seeking relief that the plaintiff Nos. 1 and 2 had encroached on land purchased by him, and claimed possession of area of 30 Ares.
9. This Counter-claim was denied by the plaintiffs by filing Written Statement thereto.
10. The Trial Court had framed issues relating to the respective claims of encroachment as follows:
1. Does plaintiff prove that measurement done by defendant No. 2 of Gat No. 146 dated 27-12-2000 is illegal and unlawful?
2. Does defendant No. 4 prove that plaintiffs No. 1 and 2 are having possession upon his land to the extent of 00 hec 30 Are as per measurement?
[Quoted from Page No. 29 of the Second Appeal paper book .
11. Plaintiff No. 1 offered himself as a plaintiffs' Witness No. 1, and his oral evidence was recorded in which he had asserted/reiterated gist of his claim. To prove plaintiffs' story of encroachment, Plaintiffs examined as Witness No. 2 - Shri Damodhar Sampatrao Mutekar, a Cadesteral Surveyor. The said witness simply tendered the map, which was exhibited and treated as proved.
12. In the cross-examination, the said plaintiffs' Witness No. 2 - Shri Mutekar has admitted that the boundaries shown in the sale-deeds do not match with the area of the land, as well that record as to the 'Pot Hissa' in survey number was not with him.
13. The defendant No. 4 examined himself in support of his plea as to defence and claim, and relied upon prior measurements which favoured him, and, as allegedly, were not objected by plaintiffs at the time when the measurement was carried out much prior to filing of suit.
14. Learned Trial court delivered the judgment, dismissed the suit as well as Counter-claim and directed that the amount of sale proceeds of the teak trees, which was deposited in Court, be given to defendant No. 4.
15. The learned Trial Judge has recorded findings on both Issue Nos. 1 and 2 in negative. By the finding recorded in para Nos. 13 and 14 of the judgment, the learned Trial Judge held as follows:
14. In this case plaintiff neither produced any map nor carried out measurement through Government authority. The Plaintiff admits during his cross-examination that he neither measured his land through Government authority nor through private authority. He stated that he measured the land four years ago, but that measurement is not before the court. Therefore for the purpose of tracing out illegal measurement carried out of Gat No. 146 by defendant No. 4 through defendant No. 2 neither Government measurement is placed before the Court nor placed any private document. Plaintiff himself admitted in his evidence that while at the time of measurement done by defendant No. 4 on 27-12-2000, he and other persons were present. He further failed to prove what illegality committed by the Government measurer. There is no evidence to demonstrate that defendant No. 4 with the help of defendant No. 2 committed such illegal measurement. Consequently, I answer this issue in the negative.
[Quoted from Page Nos. 32 and 33 of the Second Appeal paper-book].
16. However, on the basis of permission to cut and sell the trees which was granted in favour of defendant No. 4 by Forest Officer, the learned Trial Judge held that the defendant No. 4 was entitled to receive the price of teak sold by defendant No. 4, which was deposited in the Court.
17. Aggrieved plaintiffs preferred an appeal being Regular Civil Appeal No. 6 of 2001. The defendant No. 4 seems to have acquiesced with the decree.
18. The learned First Appellate Court has framed the points for determination relating to encroachment as follows:
1. Whether it is proved by the plaintiff that the Defendant No. 4 has encroached upon their (plaintiffs) land Gat No. 144, 145, 147 and 148 as alleged?
[Quoted from Page No. 15 of the Second Appeal paper book ,Learned Appellate Judge has answered the point framed, which is quoted above, in negative by discussion done in para Nos. 25 and 28, holding that the fact of encroachment by defendant No. 4 is not proved.
19. It is this Judgment of the Appellate Court which is under challenge in the present Second Appeal.
20. To support his case, learned Adv. Mr. A.V. Bhide for the appellants has placed reliance on following judgments:
[a] Kashinath Chindhuji Shastri v. Haribhau Nathuji Bawanthade MANU/MH/1001/2003 : 2004(2)MhLj722 ,
[b] Kisanlal Maniklal Rathi v. Dinkar Yashwant Patil MANU/MH/0711/2003 : 2004(1)MhLj138 ,
[c] Ramchandra Bhikaji Jagtap v. Dudharam Langruji Padvekar dead through L.Rs. Bulkabai Padvekar and Ors. MANU/MH/0725/2003 : 2004(1)MhLj278 ,
[d] Vaithinattar and Anr. v. Sakkubai Ammal MANU/TN/0669/2004 : AIR 2004 Mad 419,
[e] Kashinath Ramkrishna Chopade v. Purushottam Tulshiram Tekade and Ors. MANU/MH/0867/2005 : 2005(6)BomCR267 , and,
[f] Pentook Lepcha v. Sonam Lepcha and Ors. AIR 2007 (NOC) 1777 (Sik.).
21. Learned Adv. Mr. A.V. Bhide has argued following points and submissions:
[a] It was not open to the Trial Court to have allowed the price of teakwood to be taken by the defendant No. 4, though his story of encroachment by plaintiffs was not proved, and in absence of a finding by Trial Court that the defendant No. 4 was in possession of area of land purchased by him and that the teakwood trees cut off by him were grown within the area purchased by him.
[b] Based on the Judgments cited, encroachment could be ascertained and proved only on the basis of appointment of Commissioner, and since on facts of the case, the Commissioner had failed in proving exact measurement, instead of dismissing the suit, the Trial Court should have relegated the trial of suit to the stage of directing the Commissioner to conduct the measurements afresh, or should have got it done through any other Court Commissioner.
[c] The fact of encroachment could not have been held proved, or adjudicated upon sheerly by oath against oath. In order to complete the enquiry, fresh appointment of Commissioner and adjudication based on fresh report of Commissioner, if rendered according to law and his evidence would alone have been the right procedure, which is not adopted.
22. In reply, learned Adv. Mr. S.C. Bhalerao for respondent No. 4 urged that:
[i] It was plaintiffs' suit in which they had alleged encroachment by defendant No. 4, and prayed for a decree for delivery of possession of encroached land. The Plaintiffs were under an obligation to make their own judgment as to whether the evidence led for and on their behalf by defendant No. 2 did constitute proof of facts required to be proved by them to succeed.
[ii] If, according to the plaintiffs' judgment, the evidence was not sufficient to prove, the party was under obligation to secure best evidence. If so desired, the plaintiffs should have applied for appointment of Commissioner afresh, and since this procedure was not followed, no indulgence was warranted.
[iii] Fact-finding was adequately done, and the Substantial Question of Law framed by this Court cannot be answered in favour of the plaintiffs and hence suit deserves dismissal.
OBSERVATIONS AND REASONING
23. The case, thus, revolves around limited question as to whether the findings recorded by the Trial Court holding that the plaintiffs had failed to prove the encroachment is legal and proper. Crux of the matter is the law governing fact13 finding on the point of proof of fact and extent of encroachment, subject-matter of suit.
PROOF OF FACT OF ENCROACHMENT
24. If there be undisputed boundaries, encroachment can be a question or a matter of fact, which can be seen by a person where encroachment was witnessed. Fact of encroachment also could be a matter of oral evidence, if the admitted boundaries are destroyable, and have been destroyed in presence of witness by the party making the encroachment.
PROOF OF EXTENT OF ENCROACHMENT
25. The extent of encroachment, i.e., area, is not a matter to be adjudicated upon oral evidence of any number of witnesses, who have witnessed the act of encroachment.
26. The witnesses, who may be the persons who have measured the land allegedly encroached with reference to public records in relation to the survey numbers or 'Pot Hissa' survey numbers on application by parties or under orders of Court, can certainly prove the fact of encroachment in terms of length, breadth, area etc.
ON FACTS, WHAT HAS HAPPENED?
27. In the present case, fact of encroachment was sought to be proved by plaintiffs' evidence, and it is so proved. The extent of encroachment was sought to be proved by aid of Court Commissioner. The Commissioner has measured the encroachment, without having authentic document of maps etc., with him. Courts were, therefore, right in holding that exact encroachment is not proved.
28. Courts were not able to reach a finding or a conclusion that the defendant No. 4 had not encroached, or any finding akin thereto concluding that suit deserved dismissal as plaintiffs' suit is false.
THE COURSE REQUIRED TO BE FOLLOWED
29. In these premises, this Court finds that fact-finding as to fact and extent of encroachment can be done only when inspection and measurements are carried out by appointment of an expert Commissioner. The view of this Court that the measurement ought to be done is supported by various judgments of this Court, relied upon by the appellants.
30. The question, which has remained to be detailed, is the mechanism to be operated by Court Commissioner and details as regards law in this regard.
31. The question of encroachment has a direct bearing on the boundaries of land, which is subjected to land revenue and is measured and marked in the process of public survey on preparation of Land Records under the provisions of Maharashtra Land Revenue Code or law in existence prior thereto, and these records are public documents.
32. When the Court had to decide the issue as to encroachment, proof thereof was/is a matter governed by Sections 36 and 60 of Evidence Act.
These are the public records which are relevant under Section 36 of the Indian Evidence Act. It shall be useful to quote and refer to Section 36 of the Indian Evidence Act, which reads as follows:
36. Relevancy of statements in maps, charts and plans.- Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.
33. As can be seen from first, second and third unnumbered clauses of Section 60 of Evidence Act, the fact of encroachment is a matter of three aspects together, namely which can be [1] seen, [2] perceived by sense by taking aid of measurement devices, and [3] an information based thereon. Ready reference to relevant portion of Section 60 would be useful which is quoted below:
60. Oral evidence must be direct.-Oral evidence must, in all cases, whatever, be direct; that is to say:
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds;
Provided ...
Provided ....
[While quoting, emphasis is supplied].
34. In absence of such records being in hands of the Cadesteral Surveyor - the Court Commissioner or otherwise, the extent of encroachment is a matter which is incapable of adjudication.
35. 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.
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.
39. Impugned Judgments are, thus, erroneous being rendered contrary to law as to proof of facts.
40. In the premises, the appeal deserves to be allowed and remanded back to the Trial Court.
41. The impugned Judgment and Decree of First Appellate Court is set aside. Special Civil Suit No. 88 of 2006 is remanded to the Court of Civil Judge [Senior Division], Yavatmal, for appointment of a qualified Surveyor as a Commissioner, afresh from the Office of the District Inspector of Land Records, or Taluka Inspector of Land Records, who shall secure public record relating to the survey numbers, subject-matter, ascertain undisputed or settled boundaries, measure both, and, if necessary, surrounding survey numbers in the light of foregoing discussion, and decide as to whether the plea of encroachment made by the plaintiffs is factually correct.
42. The Commissioner shall follow the procedure of such measurement as prescribed by rules, and furnish his report to the Trial Court within six months of the receipt of writ of Trial Court. The Taluka Inspector or Land Records or District Inspector of Land Records and all higher level officers should make available requisite public records and/or certified copies thereof for execution of Commission.
43. Parties are directed to appear before the Court below on 30th June, 2009 without waiting for summons, on which date Court shall take steps as directed.
44. Costs of Commissioner shall be borne by the appellants-original plaintiffs.
45. In the result, appeal is partly allowed in terms of paragraph numbers 40 to 44 above and this paragraph. Parties are directed to bear own costs of present appeal. Decree be drawn accordingly.
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