Whether appointment of court commissioner to measure suit property is necessary to ascertain encroachment??

Although these two documents are on record, the material thing that needs consideration is whether the plaint map prepared by PW 3 Balwant 'retired Talathi' could be relied upon to hold that there is an encroachment on plaintiffs land and if there is one ,what is the extent. This is the only map (Exh. 76) on record, as far as measurement of the site is concerned. It appears to me that it would not be proper to rely on this measurement map, for the site does not seem to have been measured scientifically and after notice to the defendant. PW 3 Balawant in examination-in-chief says that he measured the site on the basis of 1920 map and it was shown to him by Surendrasing the plaintiff. It is not clear if it was a Survey map drawn by Government agency or department or a private map. Whatever that was, that too should have been placed on record. He admits in cross-examination that he had not seen the title-deed of either party. He also states that the map is drawn as told by Surendrasing. He says that he does not know the number of the map and he did not bring those notes of measurement before the court. It is obvious that the map was drawn as suggested by Surendrasing the plaintiff. It is not a measurement done independently and on basis of authenticated documents. He does not say if he had seen any document before he measured. One, therefore, wonders as to how then he could determine the boundaries of the plots of the plaintiff as well that of the defendant. He does not say if he found any fixed mark of survey department at any spot and that he measured it taking that point as base point. It is, therefore, clear that the measurement map (Exh. 26) cannot be taken as a correct map. The courts below, therefore, should have appointed a Commissioner to measure not only the plot of the plaintiff but that of defendant also with reference to defendant's sale deed (Exh. 65) and also with reference to survey map (Exh. 61). It also appears that plaintiff had filed on record a certified copy of the sanction plan of house of plaintiff and it is at Article 'B'. This sanction plan of plaintiff's house is of the year 1923. Obviously, it is a very old document and material document to determine the exact extent of the land of plaintiff's site. Since sale deed of the plaintiff's site is not available, this document would be of immense help at the time of the measurement. In fact, therefore, the above documents would certainly have helped the measurer to measure the land and for the court to determine the question of encroachment correctly. To my mind, therefore, the courts below erred in not appointing a Commissioner to measure the site of the plaintiff and defendant both with reference to these documents. In order that the suit is finally and effectually decided, it is, therefore, desirable to have measurement of the both the sites which measurement can be undertaken by Surveyor from the City Survey Department.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 67 of 1996

Decided On: 29.01.2008

 Shamlata  Vs. Vishweshwar Tukaram Giripunje and Ors.

Hon'ble Judges: 

C.L. Pangarkar, J.

Citation: AIR 2008 Bom 155

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Procedure to be followed by the Court if commissioner report is not free from blemish

 It is stated that the report of the Commissioner is intended to assist the Court in proper understanding and appreciation of the matter in dispute in the case. If the Court finds that the report of the Commissioner is not free from blemish and there is discrepancy in the evidence of the Commissioner and his report which is likely to mislead the Court, the right course for the Court would be to reject the report of the Commissioner, so also his evidence.

The report of Commissioner regarding measurement of the land in dispute has been discarded as it was found that there was no fixed point available near the dispute plot and it was not possible to carry out the measurement from the point that was available as no line was properly visible from there and, therefore, the Commissioner had to set up two imaginary points with the help of the map and carry out the measurement of the land in dispute and, therefore, the High Court found that the report of the Commissioner suffers from fundamental error as there could not be any guarantee of accuracy of the measurement in the process adopted by the Commissioner. The Court further observed that the order of the Court accepting the report of the Commissioner cannot be sustained. In the case before hand, the learned Counsel for the appellant has rightly pointed out from the evidence of Deotale (P.W. 1) that no permanent points were fixed or located before starting the measurement of land in dispute. The witness Deotale however admitted that he fixed two points but did not measure the distance between those two points and, therefore, the correctness of the two points could not be ascertained. The first Appellate Court has not taken into consideration this piece of evidence. It goes without saying that when the land is measured by plain table method the authority measuring the land has to locate permanent fixed points since fixed points in survey operations are paramount fixtures and if the fixed points were not available near about the disputed plot, he has to find out other permanent structures near about the plot and take measurement. In no circumstances, the surveyor should not have set up imaginary points with reference to the map by which process there cannot be any guarantee of accuracy of the measurement. Therefore, it has to be said that the first Appellate Court fell into error of not appreciating such fundamental errors committed by Deotale (P.W. 1) while measuring the land. In addition to this, what is found on record by me is that the map Ex. 30 no where points that permanent fixtures are noted by Deotale muchless of the trees which were standing on the common Dhura of the land and as the evidence stands these trees were standing since the time the land was purchased by the plaintiff and defendant. It is also pertinent to note that in the map Ex. 30 besides defendant, encroachment is claimed to have been made by others but the witness had not measured the lands of other persons including defendant. He has also not indicated in the map Ex. 30 the total acreage of the land owned by plaintiff that was found at the time of measurement. The position of Nali is admittedly on the Northern side of the common Dhura. That is also not shown correctly in the map Ex. 30. This relevant material in the evidence and serious fundamental error in the measurement materially affects the accuracy and authenticity of the measurement. Therefore, the first Appellate Court committed an error in accepting the evidence of Deotale (P.W. 1) and map Ex. 30 as conclusive evidence supporting the claim of plaintiff as to encroachment.

Bombay High Court

Govind S/O Raoji Katole vs Ganpati S/O Tukaramji Khanke Dead ... on 21 September, 2001

Equivalent citations: 2002 (1) BomCR 124

Author: P Brahme

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