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2014 DIGILAW 1382 (BOM)

Shyam Janardan Chaoudary v. Asha Ramdas Katkar

2014-06-30

A.P.BHANGALE

body2014
ORAL JUDGMENT 1. Rule returnable forthwith. Heard finally by consent of the learned Counsel for the respective parties. 2. The writ petitioner is aggrieved by rejection of the application for appointment of Court Commissioner by the trial Court by passing order below Exh.31. It appears that the plaintiff in the trial Court had sued the defendants on the ground that the defendants are liable to vacate the portion encroached upon by them in respect of the house property occupied by the plaintiff. It is further case of the plaintiff that the plaintiff had described the suit property by its boundaries along with measurements and also referred to registered sale deed dt.11.7.2000 in respect of the house property purchased by him. Boundaries of the house property were also mentioned and the map drawn to the scale was also produced by the plaintiff in the pending suit. It is under these circumstances that the plaintiff wanted the defendant to vacate his allegedly encroached portion marked as “ v c d M ” admeasuring 4 x 10 ft. Under these circumstances, the prayer was made for appointment of Court Commissioner so that the competent Court Commissioner can draw map or plan drawn to the scale in respect of the suit property indicating encroachment, if any by or on behalf of the defendants etc. so that the trial Court would have on record authentic plan or map. If such plan or map is agreed between the parties, the trial Court is assisted meaningfully and effectively to decide the real controversy between the parties finally. 3. This Court has earlier in the ruling in the case of Kolhapuri Bandu Lakade .vs. Yallappa Chinappa Lakade, since deceased through Pooja @ Poojari Y. Lakade and Ors. reported in 2011 (3) Mh.L.J. 348 has held that the dispute in respect of possession of allegedly encroached portion of the suit property can be decided when the trial Court is assisted by the competent Court Commissioner who can draw the map or plan which may be agreed between the parties. Appointment of Court Commissioner can help the Court to find out whether the map or plan produced on record coming from authentic source is agreeable between the parties. Appointment of Court Commissioner can help the Court to find out whether the map or plan produced on record coming from authentic source is agreeable between the parties. The City Surveyor, in such case, by drawing appropriate map or plan to the scale can assist the Court particularly when the plaintiff has sought possession in respect of allegedly encroached portion of the suit property. Such map or plan drawn to the scale by the City Surveyor or competent Surveyor though not conclusive when produced, if agreed between the parties can ensure early end of the civil dispute between the parties. 4. In the case of Yeshwant Bhaduji Ghuse vs. Vithobaji Laxman Ladekar reported in 2010 (3) Mh.L.J. 956 , this Court has considered the provisions of Order XXVI, Rule 9 of the Code of Civil Procedure and has held that as under “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 the 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. 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 exact area encroached upon, oral evidence cannot conclusively prove such an issue. ” 5. Hence, it is always necessary and desirable that the trial Court shall appoint the City Surveyor in respect of the property falling within the city limits or Taluqa Inspector or District Inspector of Land Records as Commissioner so that such Commissioner can take measurement of the suit property in presence of the parties concerned and prepare authentic measurement map so that the trial Court is assisted meaningfully and effectively to decide the real controversy between the parties as expeditiously as possible. Hence, the impugned order is set aside. The trial Court is directed to consider the application filed by the plaintiff in the light of the decisions referred above and then to pass the order after hearing the parties. The petition is, therefore, disposed of accordingly. No order as to costs.