Whether Municipal Corporation can restrain a party to do construction unless boundary dispute is settled?

Thus upon consideration of facts of the case and law laid down in the cases cited, we hold that the planning authority cannot enter into the private dispute and more so when the dispute relates/touches the boundaries of the lands, it is Civil Court, which alone has jurisdiction to adjudicate upon and answer the issue. In the case in hand, planning authority ventured to act upon complaint of third party through Revenue Authorities. It is not Corporation's case that the petitioners commenced the development unlawfully and/or the building permission has been granted in consequence of any material misrepresentation or fraudulent statements made by the petitioner in the notice or information furnished under Section 253 or 254 of the Maharashtra Municipal Corporation Act. That even otherwise, Maps which were produced for seeking development permission were drawn by the Revenue Officials, therefore even assuming that these Maps are incorrect, fault can't be attributed to the petitioners and they can't be penalized for it. In view of the facts of the case and for the reasons stated, we answer question no. 1 to hold that the Corporation being planning authority was not within its jurisdiction to take cognizance of alleged boundary dispute nor was justified in law in restraining the petitioners from continuing with the construction, until the boundary is fixed and settled by the Revenue Authorities.

 In the High Court of Bombay

(Before S.C. Dharmadhikari and Sandeep K. Shinde, JJ.)

Shree Sai Reality Through Partner Shri. Sandeep Dindyal Aagarval and Others . Vs State of Maharashtra and Others 

Writ Petition No. 7485 of 2019

Decided on July 15, 2019

Citation: 2019 SCC OnLine Bom 1421

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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

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Whether court should appoint court commissioner in case of boundary dispute?

Learned advocate for the appellant submitted that these cases cited by the learned advocate for the respondent are distinguishable. In present case, where the plaintiff is seeking to protect his property on the strength of ownership and in a case, where documentary evidence is in the form of sale deed in respect of suit property indicating prima facie ownership and possession of the plaintiff and he alleges encroachment over the suit property and seeks possession of the encroached portion from the defendant who may have taken law into his hands, in such exceptional cases, where real controversy between parties is in the nature to determine the boundary dispute or fix identity of the suit land, the court is duty bound to insist upon the parties to file accurate map in respect of the suit property. My attention is invited to the ruling in Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar ( MANU/MH/1474/2009 : 2010 (3) Mh. L.J. 956) : (2010 (2) ALL MR 694) in which this court considered earlier judicial precedents including Ram Kishore Sen and ors. Vs. Union of India and ors. (MANU/SC/0052/1965 : AIR 1966 SC 644) and observations made by the Hon'ble Supreme Court of India in paragraph 11 and 12 thereof. Judicial precedents in Ushabai Sharadchandra Vs. Wasudeo and ors. (MANU/MH/0993/2003 : 2004 (2) Mh.L.J. 594) and Vachhalabai w/o Kundlik Gavane and ors. Vs. Chinkaji s/o Malhari Jadhav and ors. (MANU/MH/0341/2012 : 2012 (4) Mh. L.J. 198) : (2012 (3) ALL MR 91) are also cited in order to submit that trial court in such cases of boundary dispute can appoint public official like Taluka Inspector of Land Records/District Inspector of Land Records by invoking power under Order XXVI, Rule 9 of Code of Civil Procedure so that evidence of the Commissioner in the form of report submitted by public official concerned regarding measurement of the suit land is considered for to decide the real controversy between the parties regarding boundary of the suit property or land on the basis of authenticated evidence instead of technically dismissing the suit on the ground that there was no oral evidence in such cases. Normally, it is true that the court of law would not exercise its discretion for to assist the plaintiff to prove fact as to who is in possession if it is a disputed fact. However, the cases of boundary dispute are clearly distinguishable in which the identity of land, measurement thereof and area of the land is needed to be considered preferably on the basis of the authentic evidence and map of the land drawn by competent public official on behalf of the Central or State Government, the trial court is benefited by such map of the land authentically drawn and produced in order to decide the suit correctly, effectively and finally in the larger interest of justice so that no such dispute shall remain pending in courts for long time in respect of alleged encroachments over the suit property. It is, therefore, always desirable to get the suit land or field measured by an expert or competent public official to find out the area of the suit land encroached upon, more so, when oral evidence cannot help the court when it is in the form of words against words by rival parties. Considering the implication of Section 83 of the Indian Evidence Act, presumption can be drawn in respect of map or plan drawn by competent public official in such cases so as to resolve the controversy between the parties. It is, therefore, decided by this court earlier also, that it is always desirable to insist upon the parties in such cases, to have a joint measurement in respect of the suit land or joint property, then the trial court upon evidence led before it can decide the real controversy in the suit finally, effectively and in accordance with law. In cases where parties are at dispute or not in agreement with the map or plan, Court Commissioner can certainly be appointed in order to prepare a map or plan in respect of the suit property in order to assist the court. There is no question of assisting the plaintiff to collect evidence of disputed factum of possession in such cases. Therefore, rulings pointed out on behalf of the respondent are accordingly distinguishable in such cases and would not militate against the appellant. Because in the absence of map or plan, in cases of boundary dispute, even if decree is passed, it would be meaningless as it may remain inexecutable in absence of authentic map. For the aforesaid reasons, therefore, the impugned judgment and order is required to be quashed and set aside with necessary directions for just decision in the case. Hence the following order.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 220 of 2013

Decided On: 10.01.2014

Shri Bhupendra Vs. Shri Homraj

Hon'ble Judges/Coram:

A.P. Bhangale, J.

Citation:  2014 (3) ALL MR 635

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Whether defendants can seek execution of decree?

  There are very many instances in which a decree can be said

to be in favour of the parties to the litigation, irrespective of the fact whether


they are the plaintiffs or defendants in the suit. In such cases, the decrees

can be said to be capable of execution at the instance of any of the parties

to the suit.     Examples of such decrees are those passed in suits for

partition, specific performance of a contract, suits under Section 92 CPC,

etc. I may hasten to add that the list is not exhaustive.

          A Division Bench of the Calcutta High Court in Iswar Sridhab

Jew v. Jnanendra Nath (AIR 1960 Calcutta 718) has laid down the law

that where a scheme decree is executable and gives any rights to any

party, which can be enforced by execution, the fact that the person seeking

execution was formerly a defendant in the suit and a judgment debtor

under the decree cannot possibly prevent him from working out the decree

by execution. Learned Judges have drawn an analogy from a decree in a

suit for partition to arrive at the conclusion.

           I may immediately refer to Section 28 of the Specific Relief Act,

1963 (in short, "Act") to vouchsafe the point that under certain

circumstances, even the defendant can seek indulgence of the court for

reliefs subsequent to the decree. Section 28 of the said Act deals with the

rescission of a contract after passing of a decree in a suit for specific

performance. It is well settled that a suit for specific performance does not

come to an end on passing of a decree.             Section 28(1) of the Act

empowers a vendor or lessor to apply in the same suit in which the decree



is made to have the contract rescinded, if the purchaser or lessee, as the

case may be, does not, within the period allowed by the decree, or such

further period as the court may extend, pay the purchase money or other

sum. From this provision, it is clear that despite the vendor or lessor was a

defendant in the suit, such a person gets an opportunity to seek rescission

of the contract even after passing the decree. This principle has been

approved by the Bombay High Court as early as in 1923 in the decision in

Bai Karimabibi v. Abderehman Sayad Banu (AIR 1923 Bombay 26).

Learned Single Judge of the High Court of Patna in Kanu Charan Deep v.

Bimla Deep (II (1996) DMC 214) has held that a decree in a proceeding

under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal

rights is executable even at the instance of the respondent as the decree is

in favour of both the parties. Division Bench of the Allahabad High Court in

Ajudhia Prasad v. The U.P. Govt. through the Collector (AIR 1947 All.

390) has considered the scope of the expression "decree holder" occurring

in Section 2(3) CPC and held as follows:

                   "Now it is clear from this that a person in

             whose favour an order capable of execution has

             been made is also a decree holder. It is also evident

             from this definition that a decree-holder need not be

             a party to the suit. He may be 'any person'. ..........."

For the said reasons, there cannot be any dispute that the decree passed



in a suit for fixation of common boundary of the plaintiff and defendant,

being one intended to put an end to the dispute between the parties and to

achieve the object of common good, should be allowed to be executed by a

defendant in the suit too. According to me, the sum and substance of the

legal principles to be borne in mind regarding the terms "decree holder"

and "holder of a decree" can be stated like this. The term "decree holder"

denotes a person (i) in whose favour a decree has been passed (ii) in

whose favour an order capable of execution has been passed and (iii)

whose name appears in the decree, either as plaintiff or defendant, and the

following conditions are satisfied:

       (a) the decree must be one capable of execution and

       (b) the said person, by the terms of the decree itself or from its

nature, should be legally entitled to seek its execution.

Similarly, the term "holder of a decree" takes in not only the "decree

holder", but other rightful persons like transferee of a decree, legal

representative, etc.

          Therefore, I am of the definite opinion that the view taken by

the executing court that a decree for fixing common boundary of the

properties of the plaintiffs and defendants cannot be demarcated in an

execution proceeding moved at the instance of the defendants is clearly

illegal and hence unsustainable.

IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                         PRESENT:

                            THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                      FRIDAY, THE 26TH DAY OF JUNE 2015.

                                                CRP.No. 321 of 2013 

        SOMAVALLY  Vs  PRASANNA KUMAR

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Whether court can appoint court commissioner in case of boundary disputes and disputes about identity of lands?

 I do not find any substance in the present writ petition. It is settled position of law that under Order 26, Rule 9 of the Code of Civil Procedure, the Court has discretion to order local investigation. The object of local investigation 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. Cases of boundary disputes and disputes about identity of lands are instances when a Court should order local investigation under Order 26, Rule 9 of the Code. The disputes regarding the boundaries can be best adjudicated by taking the assistance of the experts such as the T.I.L.R., who on measurement can express his opinion. The Apex Court in a case of Haryana Wakf Board vs. Shanti Sarup and others reported in 2008(8) S.C.C. 671 and the learned Single Judge of this Court in a case of Kolhapuri Bandu Lakade vs. Yellappa Chinappa Lakade (since deceased) through L.Rs. Pooja @ Poojari Y. Lakade and others reported in 2011(3) Bom.C.R. 807 have held that in case regarding boundaries and area, an expert person can be appointed as a Commissioner for measurement of the properties. In the present case, the plaintiff has prayed for appointment of Commissioner to measure the property which has been allowed.

Bombay High Court

Malhar vs Shivaji on 17 October, 2013

Bench: K.K. Tated

 Citation: 2014(1)ABR26, 2014(3)ALLMR698, 

2014(1)BomCR806, 2014(4)MhLj237

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