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 party is expected to state provision of law in pleading?

 The respondent has also invited our attention to the fact that in Galada’s case (supra), this Court has had no occasion to consider the efficacy of Insurance Surveyors and Loss Assessors (Licensing, Professional Requirements and Code of Conduct) Regulations, 2000, which came into effect from 14th November, 2000. For, the claim in Galada’s case (supra) arose in 1998 and the repudiation took place in 1999. By virtue of

the regulations, it is mandatory to appoint a surveyor on receipt of intimation about the loss; and the surveyor so appointed has to discharge his responsibilities and duties specified in the regulations while submitting its report.

24. Thus, the appointment of a surveyor by the respondent after receipt of intimation of the loss from the appellant, in the context of the present insurance policy, coupled with the 2000 Regulations and in particular an express stand taken in the repudiation letter dated 18th February, 2005 sent by the respondent to the appellant after consideration of the surveyor‟s report, it cannot be construed to be a case of waiver on the part of the respondent.

25. The appellant would then contend that the respondent did not take a plea that the surveyor was appointed because of statutory obligation. Such a plea is raised for the first time before this Court. Even this submission does not commend us. For, that plea has been taken as an additional factor to distinguish the decision in Galada’s case (supra). The party is not expected to state the provisions of law in its pleading. The

fact that such obligation flows from the regulation, in that sense, is a mixed question of fact and law.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1217-1218 OF 2017

M/s. Sonell Clocks and Gifts Ltd. Vs The New India Assurance Co. Ltd. 

A.M. Khanwilkar, J.

Dated:August 21, 2018.

Citation:  2018 ACJ 2672 : AIR 2018 SC 4146 : 2018 (4) CPJ 1 : JT 2018 (8) SC 289 : 2018 (4) RCR (Civil) 203 : 2018 (10) Scale 24 : 2018 (7) SLT 325 : (2018) 9 SCC 784

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How to ascertain limitation in suit for recovery of compensation in case of loss or injury to goods?

The period of limitation would obviously run only when a report on the loss that has occurred is obtained from an approved surveyor or loss assessor. The plaintiff can of course be non-suited on the ground of limitation if a suit for compensation is not filed within a period of three years therefrom. That does not however mean that a suit for compensation against a carrier for loss or injury of goods cannot be filed in the absence of such a report. S. 64UM(2) of the Insurance Act, 1938 has impact when the plaintiff or one of the plaintiffs is the insurer who sues on the strength of a letter of subrogation. The claim is settled and the insurer steps into the shoes of the insured on the strength of the letter of subrogation issued by the insured. It is only then can the insurer file a suit for compensation for the loss or injury of goods against the carrier as in the case on hand. The court below erred in holding that the period of limitation runs from the date of knowledge of the loss or injury of goods even for the first plaintiff. The decision in Associated Transport Corporation (P) Ltd.'s case (supra) is distinguishable since the claim therein was for a sum less than ` 20,000/-. There was no occasion therefore to consider the applicability of S. 64UM(2) of the Insurance Act, 1938 in the said decision relied on by the court below. The approved surveyor prepared the loss survey report on 29.8.1994 and the suit for compensation was filed on 25.3.1997 well within the period of three years. The period of limitation for filing a suit for compensation against a carrier for loss or injury of goods is three years when the loss or injury occurs. The suit filed by the insurer and the insured against the carrier is well in time and not barred by the law of limitation as has been erroneously held by the court below. 

IN THE HIGH COURT OF KERALA

A.S. No. 770 of 1999

Decided On: 14.12.2016

United India Insurance Company Ltd. Vs. Surat Goods Transport Service

Hon'ble Judges/Coram:

V. Chitambaresh and Anil K. Narendran, JJ.

Citation: AIR 2017(NOC)908 kerala

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Whether landlord can take surveyor alongwith him for inspection of tenanted premises?

 The plaintiff herein has filed a suit for possession on the ground that the landlord requires the suit premises bonafidely and reasonably for the purpose of immediate demolition which demolition is required to be carried out for constructing a new building as is contemplated under section 16(1)(i) of the Act of 1999. The landlord has to give an undertaking to the Court that the plans and estimates of the new building or new floor or floors to be erected by the landlord include premises for each tenant with the carpet area equivalent to the area of the premises in occupation of the tenant in the building sought to be demolished. According to the plaintiff, carpet area in occupation of defendant no. 4/petitioner no. 2 is 730 sq. ft whereas according to defendant no. 4/petitioner no. 2 the carpet area in her occupation is 1565 sq. ft. While providing the premises in a new building it is the duty of the landlord to provide for the same carpet area. For the said purpose, it would be necessary for the plaintiff to ascertain the exact area in occupation of the defendants and for the said purpose he has right to enter upon the premises and inspect the area in occupation of the defendants. In doing so, he would be entitled to take his own representative to measure the area. The landlord would not be an expert to measure the premises. The person who is expert to carry out measurement such as the surveyor would be required to be taken by the landlord to inspect the premises for performing his obligation of providing the same carpet area in occupation of the tenant in the new building. The landlord will have to satisfy himself of the exact area in occupation of the tenant so as to provide for the same. If Section 28 is interpreted in a manner that the landlord cannot take any other representative along with him, then it would render the said provision ineffective and redundant as the purpose of inspection would not be achieved. Even if to satisfy himself the plaintiff measures the tenanted premises through his surveyor, the said measurement carried out by the surveyor will not be akin to and on the same pedestal as that of the Court Commissioner. The tenant being in occupation of the premises, he can get his area measured through his expert. There is no prohibition for him. In the present case, the surveyor allowed to be taken by the plaintiff is not in the capacity of a Court Commissioner but the Court has only granted leave allowing the plaintiff to exercise his right under section 28 as the suit is pending before the Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2677 of 2013

Decided On: 23.08.2013

 Suresh Manoharlal Jumani and Shobha Jumani Vs. Aasia Management & Consultancy Pvt. Ltd.

Hon'ble Judges/Coram:

S.V. Gangapurwala, J.

Citation: 2013(5) MHLJ 905

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Whether it can be said that court has appointed commissioner if landlord is conducting inspection of premises with leave of court?

In the present case, the plaintiff had given a notice to the
defendant to allow him to inspect the premises along with his
architect/surveyor (the said fact is denied by the defendants) and
as the suit is pending the plaintiff thought it fit to obtain leave of

the Court and the same has been granted by the Court. However,
the said order of the Court cannot be construed of having
appointed a Court Commissioner nor the measurement carried
out by the plaintiff through his surveyor would be construed as a
measurement carried out by the Court Commissioner. The
measurement carried out by the surveyor of the plaintiff would
be for satisfaction of the plaintiff to ascertain exact area in
occupation of tenant. It will be for the plaintiff to prove his case
with all corroborative evidence.The learned Single Judge of this Court in a case of Smt Kamlabai Laxman Mutraj (supra) has also held that under section 28 of the Act the landlord can be accompanied by hisArchitect or other representative to
take measurement of the tenanted premises.
In view of the aforesaid conspectus of the matter, the order

of the trial Court does not require any interference.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2677 OF 2013

Suresh Manoharlal Jumani Vs  Aasia Management &
Consultancy Pvt Ltd, 

CORAM : S.V.GANGAPURWALA, J.

PRONOUNCED ON:23/08/2013

Citation;(2013) 6 AIIMR 117,2013(5) MHLJ905

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