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2013 DIGILAW 327 (BOM)

Maria Alda Fernandes v. Gabriel Coutinho

2013-02-07

F.M.REIS

body2013
Judgment : Heard Mrs. A. Agni, learned Counsel appearing for the petitioner and Shri G. Shirodkar, learned Counsel appearing for the respondents. 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondents waives service. 3. The above petition challenges an order dated 28/11/2012 passed in Regular Civil Suit No.123/2003/A by the learned Civil Judge Senior Division, Vasco da Gama, whereby an application under Order 26 Rule 9 of the Civil Procedure Code came to be rejected. 4. Briefly the facts of the case are that the petitioner is claiming to be the owner of the property bearing survey no.69/1 of Thana, Cortalim village. The petitioner filed the suit on the premise that respondents have encroached into her property and extended the existing house. It is further the case of the petitioner that the respondents were not entitled to carry out any such extension and consequently the suit came to be filed for demolition of such extension. 5. The respondents resisted the suit and inter alia claimed that they were entitled to occupy the suit premises and that they have not done any encroachment in the property of the petitioner. 6. After recording of evidence of the petitioner as well as that of the respondents the petitioner filed an application under Order 26 Rule 9 of the Civil Procedure Code for appointment of a Commissioner to identify the encroachment made by the petitioner. The respondents opposed the said application and by the impugned order dated 28/11/2012 the said application came to be rejected. 7. Mrs. A. Agni, learned Counsel appearing for the petitioner has assailed the impugned order on the ground that the law is well settled that a Commissioner can be appointed to ascertain the encroachment claimed by a party. The learned Counsel pointed out that the petitioner was not in a position to visit the suit property as according o her the respondents were creating difficulties for the petitioner to proceed to the property. The learned Counsel further pointed out that taking advantage of such situation the respondents have been encroaching into the property of the petitioner and, as such, the learned Judge is not justified to reject the application for appointment of a Commissioner. The learned Counsel further pointed out that taking advantage of such situation the respondents have been encroaching into the property of the petitioner and, as such, the learned Judge is not justified to reject the application for appointment of a Commissioner. The learned Counsel has taken me through the impugned order as well as the plaint and pointed out that it is the contention of the petitioner that any extension to the existing house is an encroachment done by the respondents in her property. The learned Counsel as such submits that the impugned order deserves to be quashed and set aside. 8. On the other hand, Shri G. Shirodkar, learned Counsel has taken me through the relief sought by the petitioner in their application for appointment of Commissioner and pointed out that the petitioner has sought a relief to identify the extension done by the respondents. The learned Counsel further pointed out that it is the case of the respondents that they have not done any extension and, as such, the question of appointing a Commissioner does not arise at all. The learned Counsel further pointed out that the respondents are the mundkars of the dwelling house and as such according to him such dwelling house consists of two structures. The learned Counsel has taken me through the impugned order and pointed out that there is no case made out by the petitioner to interfere in the impugned order. 9. I have carefully considered the submissions of the learned Counsel and have also gone through the records. With regard to the appointment of a Commissioner, this Court in the judgment reported in 2009 (4) Mah.L.J. 371 in the case of GirishVasantrao Bhoyar & anr. V/s. Nimbaji Warluji Bambal has observed at para 5 thus: “5. In the case of (Haryana Waqf Board Vs. Shanti Sarup & ors.)2, reported in 2008 DGLS (soft) 2122 : 2008(8) S.C.C. 671 , the Hon'ble Apex Court has held that whenever there is a dispute of demarcation of the disputed land, it was appropriate for the Court to direct an investigation by appointing a local Commissioner under Order 26, Rule 9 of Civil Procedure Code. This Court in the case of (Kashinath Ramkrishna Chopade Vs. This Court in the case of (Kashinath Ramkrishna Chopade Vs. Purushottam Tulshiram Tekade & ors.)3, reported at 2005 (6) Bom.C.R. 267 , has held that cases of boundary dispute and dispute about the identity of the lands are instances where a Court should order a local investigation under Order 26, Rule 9 of Civil Procedure Code. In order to determine whether there is an encroachment, it is always desirable to get the measurements of the land encroached upon. Considering the said judgment of the Hon'ble Apex Court as well as the judgment of this Court, I find that there is no infirmity of any kind committed by the learned trial Judge while passing the impugned order and appointing a Commissioner for the purpose of carrying out the local investigation as ordered in the impugned order. Another Single Judge of this Court in the judgment reported in 2011 (3) Mah.L.J. 348 in the case of KolhapuriBandu Lakade V/s. Yallapa Chinappa Lakade (since dec.) through Pooja @ Poojari Y. Lakade & Ors. has observed at para 14 thus: 14. It can thus clearly be seen that the Apex Court in the case of Haryana Waqf Board cited supra in unequivocal terms has held that in the case of demarcation of disputed lands, it is appropriate for the Court to direct the investigation by appointing a Local Commissioner as provided under Order XXVI, Rule 9 of the Code of Civil Procedure. The other learned Judges of this Court, namely, M.S. Vaidya, J., S.T. Kharche, J., A.P. Bhangale, J., F.M. Reis, J., have also held that in case of dispute of encroachment of a site, an appointment of Court Commissioner who could be City Survey Officer or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and defendant for the purpose of local investigation under Order XXVI, Rule 9 of the Code of Civil Procedure would be necessary for the just decision of the case. It has also been held by this Court that merely because a Court Commissioner is appointed, it will not prejudice the interest of either of the parties. It has been held that if any of the parties is aggrieved by the report of the Court Commissioner, an opportunity would be available to that party to cross-examine the Court Commissioner and to point out as to how his conclusions were not correct. It has been held that if any of the parties is aggrieved by the report of the Court Commissioner, an opportunity would be available to that party to cross-examine the Court Commissioner and to point out as to how his conclusions were not correct. It has further been observed that the party who was not aggrieved would also prove how his conclusions are correct.” 10. Considering the ratio laid down by this Court in the said judgment relying upon the judgment of the Apex Court, I find that in cases in which the dispute is with regard to the identity of the property and/or encroachment, it is always open to the Court to appoint a Commissioner for local investigation in terms of Order 26 rule 9 of the Civil Procedure Code. This appointment would be more appropriate taking note of the contention of the petitioner that there are some impediments put up by the respondents when she visits the suit property. Whether the report is to be accepted or not is a matter which would be considered by the learned Judge in case objections are raised to such Commissioner's report. As the report of the Commissioner itself is not conclusive, the learned Judge was not justified at this stage to appreciate the material on record to consider whether the appointment of the Commissioner would be justified. 11. Taking note of the contention of Shri G. Shirodkar, learned Counsel appearing for the respondents, I find that the petitioner is not entitled to get the appointment of the Commissioner to identify the extension as claimed by the petitioner. The Commissioner will only identify the structures as existing in the suit property along with their dimension by depicting preferably in an existing survey plan in respect of the suit property. Whether such structures are extensions or otherwise protected in law is a matter which the learned Judge would have to decide on its own merits at the time of appreciating the evidence on record whilst disposing of the suit on merits. 12. Subject to the above, I pass the following order: ORDER (i) The impugned order dated 28/11/2012 is quashed and set aside. 12. Subject to the above, I pass the following order: ORDER (i) The impugned order dated 28/11/2012 is quashed and set aside. (ii) The application for appointment of Commissioner filed by the petitioner is allowed and the learned Judge shall direct the Land Survey Authority to depute a competent surveyor to carry out the identification of all the structures in the property surveyed under no.69/1 in the light of the observations made herein above and submit a report thereof to the Court. (iv) Liberty to the parties to raise objections, if any, to such report of the Commissioner if so advised in accordance with law. (v) Rule is made absolute in the above terms. (vi) The petition stands disposed of.