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2012 DIGILAW 881 (GUJ)

Ramaben Arjanbhai Dangar v. State of Gujarat

2012-12-21

C.L.SONI

body2012
JUDGMENT : C.L. Soni, J. This appeal under Section 100 of the Civil Procedure Code is at the instance of the original plaintiff, who had filed Regular Civil Suit No.73 of 1996 for declaration and permanent injunction. 2. It is the case of the plaintiff in her suit that the plaintiff is the owner and in possession of the land bearing survey No.31/1 which is old tenure land. The said land admeasuring 5 Acre 36 Gunthas, was purchased by the plaintiff on 16.04.1990. The plaintiff got possession of the said land as also the land which is already held for 30 years by the original owner Shri. Laxmanbhai Punjabhai. The plaintiff has developed the land and has grown many fruit trees. It is further averred by the plaintiff that the lands of the Forest Department are adjacent to the land of the plaintiff and they have unilaterally got their lands measured and stated to the plaintiff that the plaintiff had encroached upon the lands of the defendants. That on 19.01.1996, the officers of the defendants damaged the standing crop and trees of the plaintiff and, therefore, the cause has arisen to the plaintiff to file the suit. The plaintiff has further stated that the defendants have got no right or authority to interfere with the possession of the plaintiff’s land bearing survey No.31/1, as also the land which was originally in possession of Shri. Laxmanbhai. The plaintiff has, thus, prayed to declare that the plaintiff is owner of the land bearing survey No.31/1 admeasuring 5 Acre and 36 Gunthas and the defendants be restrained from interfering with the possession of the plaintiff’s land bearing survey No.31/1. The plaintiff has also prayed to declare that if the plaintiff is holding excess land than the land of survey No.31/1, the plaintiff has become owner of such excess land by adverse possession. 3. The suit of the plaintiff was resisted by the defendants by filing written statement at Ex.14. It was mainly stated by the defendants that the plaintiff has encroached upon the land admeasuring 1.3 Hector of survey Nos.32 and 33 belonging to the defendants. It was further stated that the plaintiff has wrongly considered the above land admeasuring 1.3 Hector to be part of survey No.31/1 and predecessor in title of the plaintiff namely Shri. Laxmanbhai has no right to give the land of the defendants to the plaintiff. It was further stated that the plaintiff has wrongly considered the above land admeasuring 1.3 Hector to be part of survey No.31/1 and predecessor in title of the plaintiff namely Shri. Laxmanbhai has no right to give the land of the defendants to the plaintiff. That the land bearing survey Nos.32, 33, 34, 35, 36, 37/2 and 43 are declared to be the forest lands and on joint measurement carried out by the office of the District Inspector of Land Records (D.I.L.R.) and the department of forest, the plaintiff was found to have encroached on the forest land and the plaintiff has accepted such encroachment and has shown willingness to pay penalty. Therefore, the defendants stated that the suit of the plaintiff was required to be dismissed. 4. Learned Trial Judge, on appreciation of evidence, found that the plaintiff is the owner of the land bearing survey No.31/1 admeasuring 5 Acre 36 Gunthas. The learned Trial Judge also recorded the finding of facts that the plaintiff is in possession of the land admeasuring 1.3 Hector, over-and-above her own land bearing survey No.31/1 and in respect of such additional land, the plaintiff has become owner of the land by adverse possession. The learned Trial Judge, thus, allowed the suit of the plaintiff and declared the plaintiff to be the owner of the land bearing survey No.31/1 admeasuring 5 Acre 36 Gunthas and also declared that the plaintiff has become owner by adverse possession of the land to the extent of 1.3 Hector held by her in excess to her own land. The learned Trial Judge also granted permanent injunction restraining the defendants from interfering with the lands in possession of the plaintiff. 5. The State and its authorities who are the original defendants, therefore, filed Regular Civil Appeal No.69 of 2000 challenging the judgment and decree passed by the learned Trial Judge. The learned Appellate Judge, on appreciation of evidence, concurred with the finding of facts and the conclusion recorded by the learned Trial Judge to the extent the plaintiff was declared owner of land bearing survey No.31/1. However, the learned Appellate Judge found that the plaintiff has encroached upon the land to the extent of 1.3 Hector from survey Nos.32 and 33 and came to the conclusion that the plaintiff has not become owner of the said land by adverse possession. However, the learned Appellate Judge found that the plaintiff has encroached upon the land to the extent of 1.3 Hector from survey Nos.32 and 33 and came to the conclusion that the plaintiff has not become owner of the said land by adverse possession. The learned Appellate Judge, thus, partly allowed the appeal by judgment and decree dated 05.10.2012 and set aside the judgment and decree in respect of the land admeasuring 1.3 Hector of survey Nos.32 and 33 belonging to the defendants. The learned Appellate Judge has also directed the plaintiff to pay Rs. 72,640/- towards the loss caused to the defendants and also imposed exemplary cost of Rs. 10,000/- upon the defendants. It is this judgment and decree which is under challenge in this appeal before this Court. 5.1 Since the issue involved is about the alleged encroachment by the plaintiff, with the consent of learned advocates appearing for the parties, this appeal is finally heard on the following substantial question of law. “Whether the Courts below have materially erred in holding that the plaintiff is in possession of the land in excess to the extent of 1.3 Hector, over-and-above, her own land bearing survey No.31/1 situated in Village : Hadla without getting the area, boundary and identity of the lands bearing survey No.31/1, survey Nos.32 and 33 established ?" 6. I have heard learned advocates for the parties. 7. Learned advocate Mr. Vimal Patel appearing for the appellant has made serious grievance about the finding of facts recorded by the Courts below to the effect that the plaintiff has encroached the land to the extent of 1.3 Hector from survey Nos.32 and 33 belonging to the defendants. He submitted that in absence of measurement of survey No.31/1, the Courts below ought not to have relied on joint measurement carried out by the office of the D.I.L.R with the officer of the Forest Department only of survey Nos.32 and 33. He submitted that there was no measurement done of the land of the plaintiff either during pendency of the suit, or earlier when the measurement of the land bearing survey No.32 and 33 was carried. He submitted that there was no measurement done of the land of the plaintiff either during pendency of the suit, or earlier when the measurement of the land bearing survey No.32 and 33 was carried. Therefore, in absence of the measurement of the land of the plaintiff, the Courts below have materially erred by relying on the measurement of the land of only survey Nos.32 and 33 to come to the conclusion that the plaintiff holds excess land to the extent of 1.3 Hector, over and above the land of survey No.31/1. He submitted that when the core issue in the suit filed by the plaintiff was as to whether the plaintiff is owner of the land bearing survey No.31/1 and as to whether the plaintiff held any excess land or not, not only the land of the plaintiff is required to be measured but surrounding lands of the defendants are also simultaneously required to be measured so as to arrive at correct conclusion on the issues raised in the suit. He, therefore, urged to remand the matter to the Trial Court for limited purpose of getting the land of the plaintiff measured with the lands of the defendants by the office of the D.I.L.R and then to decide the issue, on the basis of the report of the D.I.L.R., as to whether the plaintiff in fact holds any excess land or not and whether such excess land forms part of survey Nos.32 and 33 of the defendants. In support of his arguments, learned advocate Mr.Patel has placed reliance on the decision of the Hon’ble Supreme Court in the case of Haryana WAQF Board v. Shanti Sarup and others, reported in (2008) 8 SCC 671 ; the decision of the Himachal Pradesh High Court in the case of Chatter Singh and another v. Dina Nath, reported in AIR 2010 Himachal Pradesh 5; and the decision of the Bombay High Court in the case of Yesabrao v. Maroti, reported in 2004 (4) CCC 213 (Bom.). 8. As against the above said arguments, learned AGP Mr.Bipin Bhatt for the respondents submitted that the plaintiff had never requested for appointment of Court Commissioner to get her land measured. 8. As against the above said arguments, learned AGP Mr.Bipin Bhatt for the respondents submitted that the plaintiff had never requested for appointment of Court Commissioner to get her land measured. He submitted that in fact, the plaintiff has prayed to declare that she has become owner of the additional land by way of adverse possession and since such additional land forms part of a forest land, the Courts below have not committed any error in holding that the said land did not belong to the plaintiff. He submitted that when there was already evidence available as regards measurement of the land bearing survey Nos.32 and 33 by the office of the D.I.L.R and when the Courts below have relied on such joint measurement of the lands of the defendants, there is no reason to doubt the evidence as regards the measurement of the forest land of survey Nos.32 and 33. He submitted that the Courts below have, thus, not committed any error in placing reliance on the joint measurement to come to the conclusion that the plaintiff holds excess land over-and-above her own land and thereby the plaintiff has encroached upon the forest land. He submitted that the measurement of survey Nos.32 and 33 is in consonance with the revenue record and, therefore, even if, the measurement of the land of the plaintiff was not carried out, no prejudice could be said to have been caused to the plaintiff. The plaintiff has also failed to point out any prejudice caused to her because of non-measurement of her land for the purpose of deciding the issue whether the plaintiff is the owner of the land bearing survey No.31/1. He, thus, submitted that since the Courts below have reached to the finding of facts relying on the joint measurement carried out by the D.I.L.R of land survey Nos.32 and 33 that the excess land held by the plaintiff is from survey Nos.32 and 33, this Court may not interfere with such finding of facts reached by the Courts below while exercising the power under Section 100 of the Civil Procedure Code. 9. 9. Having heard learned advocates for the parties and having perused the judgments of the Courts below, with the paper-book of the documents placed with the appeal, it appears that the cause had arisen to the plaintiff to file the suit because the defendants after getting the lands of survey Nos.32 and 33 measured came to know that the plaintiff has encroached upon their lands and they asked the plaintiff to remove the encroachment. It is case of the plaintiff in the suit that the lands of the defendants are adjacent to the land of the plaintiff and the plaintiff was never informed by the defendants about carrying out the measurement of their lands and the defendants, on such measurement, had started damaging crops and other trees standing on her land. The defendants, in their written statement have also come out with the case that their lands of survey Nos.32 and 33 etc. are adjacent to the land of the plaintiff and on measurement by the office of the D.I.L.R., they found that the plaintiff has encroached upon land to the extent of 1.3 Hector of survey Nos.32 and 33. There is no dispute about the fact that measurement of the land of the plaintiff was never carried out. Learned AGP pointed out that the plaintiff never demanded to carry the measurement of her land. Be that as it may, the fact remains that no measurement of the land of the plaintiff has come on record. 10. When the issue in the civil proceedings is concerning the rights of the parties to hold their respective lands and when there is opposition against the claim of the right to the property on the ground that one of the parties has encroached upon the land of the other, it is always in the interest of the parties to get the measurement of their lands done and have them on record to come to the correct conclusion as regards the entitlement of the parties to their lands. 11. At this stage, the judgments relied upon by the learned advocate for the appellant are required to be referred. 11.1 In the case of Haryana WAQF Board (Supra), the dispute was whether the respondents therein had encroached upon any land belonging to the appellant or not. In the said case, there was already an application under Order 26, Rule 9 of the Civil Procedure Code. 11.1 In the case of Haryana WAQF Board (Supra), the dispute was whether the respondents therein had encroached upon any land belonging to the appellant or not. In the said case, there was already an application under Order 26, Rule 9 of the Civil Procedure Code. The Hon’ble Supreme Court has held and observed that the High Court ought to have considered whether in view of the nature of the dispute and in the facts of the case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land and for the said reasons, the Hon’ble Supreme Court remanded back the matter to the High Court to decide afresh in light of the observations made therein. 11.2 In the case of Chatter Singh (Supra), Himachal Pradesh High Court has held and observed that once there is a boundary dispute and demarcation was not carried in spite of the efforts of the appellant therein, the Local Commissioner should be appointed to carry out the demarcation to find out encroachment especially when the application under Order 26, Rule 9 of the Civil Procedure Code was filed. 11.3 In the case of Yesabrao (Supra), the Bombay High Court considered the provisions of Order 26, Rule 9 of the Civil Procedure Code and came to the conclusion that it is absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment had been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of property held by the plaintiff and the defendants for the purpose of local investigation under Order 26, Rule 9 of the Civil Procedure Code not only becomes relevant but appears to be essential for the just decision of the case. In the said case, Bombay High Court found that both the parties had got their lands measured on their own and there was no common measurement by the office of the D.I.L.R and in such fact situation, Bombay High Court remanded the matter, for fresh decision by directing the Trial Court to appoint the Commissioner as per Order 26, Rule 9 at the cost to be equally shared by the parties and to call for the report of the Commissioner and also the map of demarcation of the boundaries and then to decide the case of the parties. 11.4 The Bombay High Court has observed that under Order 26, Rule 9, the Court has discretion to order local investigation and the purpose of such local investigation is to find out actual position of the properties. It is further observed that 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. 12. In the present case, though the plaintiff has not made any such application under Order 26, Rule 9 of the Civil Procedure Code, but nature of the dispute raise in the suit did call for exercise of power under Order 26, Rule 9 by the Court to get the land of the plaintiff also measured, so that there remains no grievance by the plaintiff to allege that the dispute was decided only on the basis of the measurement of adjoining lands. 13. At this stage, provision of Order 26, Rule 9 of the Civil Procedure Code is required to be referred and the same is produced as under :- “In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a Commission to such person as it thinks fit directing him to make such investigation and to report thereon the Court.” 14. Reading the provisions of Order 26, Rule 9 of the Civil Procedure Code, it clearly appears that in any suit when the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a Commission directing such person as it thinks fit to make such investigation and to report thereon to the Court. The Court is, thus, not dependent upon the application of the parties. If the Court finds and deems it proper to have a local investigation of the suit property for the purpose of deciding the dispute between the parties, the Court can exercise its discretion. The Court is, thus, not dependent upon the application of the parties. If the Court finds and deems it proper to have a local investigation of the suit property for the purpose of deciding the dispute between the parties, the Court can exercise its discretion. Therefore, even if the plaintiff had not made any application under Order 26, Rule 9 of the Civil Procedure Code, the Courts below could have exercised its discretion under Order 26, Rule 9 of the Civil Procedure Code to appoint Commissioner for the purpose of getting lands of the plaintiff and the defendants measured simultaneously by the office of the D.I.L.R in presence of the officer of forest department. In my view, looking to the dispute involved in the present proceedings, it was a case for exercise of the discretion by the Court below for appointment of Court Commissioner for the purpose of getting the lands of the parties measured. The Courts below have failed to exercise such discretion though called for in the facts of the case. Considering the facts of the case and issues involved in the suit proceedings and in light of the principles of law laid down in the context of Order 26, Rule 9, I am of the view that interest of justice would be served if the matter is remanded to the Trial Court for the limited purpose of appointment of the Court Commissioner from the office of D.I.L.R to get the lands of the parties measured in presence of the parties and to prepare a map thereon and to submit report to the Trial Court so that the Trial Court can on this issue take decision afresh after giving opportunity to the parties on such report to find out whether the plaintiff holds any excess land over-and-above her own land. 15. In the result, the appeal is partly allowed. The judgment and decree passed by the Courts below, except the decree holding the plaintiff to be the owner of the land bearing survey No.31/1, are quashed and set aside. 15. In the result, the appeal is partly allowed. The judgment and decree passed by the Courts below, except the decree holding the plaintiff to be the owner of the land bearing survey No.31/1, are quashed and set aside. The matter is remanded to the Trial Court with a direction that the Trial Court shall appoint Commissioner under Order 26, Rule 9 of the Civil Procedure Code who shall be an officer from the office of D.I.L.R., to carry out the measurement of the lands of the parties being survey Nos.31/1, 32 and 33 in presence of the parties and shall prepare map thereon and also put demarcation as well as fix boundaries of the lands of the respective parties and shall make report to the Trial Court showing the actual measurement of the lands in possession of the parties. The Commissioner shall specifically mention in his report as to whether the plaintiff holds excess land over and above her land bearing survey No.31/1 and to what extent. The cost of the demarcation of the lands shall be equally borne by the parties. On receipt of the report, the Trial Court shall then decide as to whether the plaintiff holds any excess land over and above her own land bearing survey No.31/1 after giving opportunity to the parties of the suit. The Trial Court shall see to it that the report of the Commissioner is made available within a period of three months from the date this order is placed before it and the suit is decided within a period of three months thereafter. If after hearing the parties, the Trial Court records finding that the plaintiff holds excess land over and above her own land of survey No.31/1, the finding recorded by learned Appellate Judge that the plaintiff has not become owner of excess land by adverse possession shall stand restored, and the defendants shall be at liberty to take appropriate action for taking over possession of the land encroached by the plaintiff in accordance with law. 16. In view of the disposal of the Second Appeal, the Civil Application does not survive and hence, the same stands disposed of. Appeal partly allowed.