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2014 DIGILAW 393 (BOM)

Manikrao Ramji Chawake v. Ashok Ambadas Gawande

2014-02-14

A.P.BHANGALE

body2014
Judgment 1. Heard the learned Counsel for the respective parties. 2. Admit on the following substantial question of law : Whether it is essential to get the map in respect of the disputed agricultural land prepared by the Court Commissioner as directed by this Court vide order dt.11.11.2003? 3. My answer to the above question is in the affirmative as in the cases where dispute is as to boundaries or boundary-marks of the immovable property and when parties do not agree to any map produced on the record, it becomes essential for the trial Court or the first Appellate Court as final Court on finding of facts to ensure that a competent Cadestral Surveyor is appointed as the Court Commissioner to prepare measurement map in respect of the suit properties so that after receiving authentic map or plan from the competent Official on behalf of the State Government, the trial Court is assisted meaningfully with a view to execute the decree that may be passed. Execution of decree is thus facilitated so as to set at rest the real controversy between the parties. 4. By an order dt.11.11.2003, this Court had appointed a Court Commissioner after entertaining this Second Appeal as against the Judgment and Order passed on 8.10.1999 by the learned Additional District Judge, Washim in Regular Civil Appeal No.40 of 1997, which was arising out of Judgment and Order dt.20.3.1997 passed in Regular Civil Suit No.84 of 1992 by the Joint Civil Judge (Jr.Dn.), Mangrulpir. The dispute is about the alleged encroachment made by defendants Ashok Ambadas Gawande and Vithal Dalpat Patil (Original defendants). The Regular Civil Suit was filed for recovery of encroached portion in respect of agricultural land bearing Survey No.46/1, admeasuring 1 H. 44 R. situated at mouza Tornala, Tq.Manora, District Akola. The learned trial Judge held that the first defendant had encroached upon 91 R. of the aforesaid land and directed the said defendant to hand over possession thereof to the plaintiff and also awarded compensation/damages in the sum of Rs.3,375/- to the plaintiff. My attention is invited to the fact that the plaintiff had relied upon map (Exh.55) in the trial Court on the basis of which learned trial Judge passed the decree. My attention is invited to the fact that the plaintiff had relied upon map (Exh.55) in the trial Court on the basis of which learned trial Judge passed the decree. The learned Counsel for the appellant is aggrieved by the findings recorded by the first Appellate Court who concluded while allowing the appeal that encroachment of 91 R. land was not established. 5. It cannot be disputed that this is a same age old controversy regarding measurement of area of the land and boundaries thereof which is usually settled by the authentic map prepared in presence of the parties when joint measurements are carried out in presence of the parties in respect of the disputed land and then accordingly the map is produced by authentic source like Official from the department of Taluka Inspector of Land Records or District Inspector of Land Records concerned as the case may be so as to set at rest the real controversy between the parties. The legal position in this regard is settled as the parties are required to assist the Government Official concerned from the department of T.I.L.R. or D.I.L.R. as the case may be. He may be appointed by the consent of the parties or in default by the Court with a view to decide real controversy between the parties to the suit. If there is agreed map on the record, the dispute can be settled accordingly by directing the party in default to vacate the portion encroached upon the suit land as established on the basis of such map. But when the parties do not agree upon the plaint map or the map produced during pendency of the suit, in that case the Court Commissioner may be appointed to prepare such map in presence of the parties by carrying out measurements of the suit land. Such map is required to be drawn by the Official from the department of T.I.L.R. or D.I.L.R. concerned who may, after joint measurement of land in dispute in the presence of the parties, produce the same on record with his report. The learned trial Judge may, upon further evidence led by the parties, if any, decide the real controversy finally. Such map is required to be drawn by the Official from the department of T.I.L.R. or D.I.L.R. concerned who may, after joint measurement of land in dispute in the presence of the parties, produce the same on record with his report. The learned trial Judge may, upon further evidence led by the parties, if any, decide the real controversy finally. When the map is drawn by the competent Official from the T.I.L.R. or D.I.L.R. as the case may be, the trial Court may certainly presume authenticity thereof u/s.83 of the Indian Evidence Act regarding accuracy of such map or plan produced on record in order to determine the factum of encroachment and then may pass necessary final order to set at rest the real controversy between the parties regarding such boundary dispute. Without production and exhibition of such map in such cases, it would not be possible to execute the decree meaningfully and effectively. 6. In view of this legal position, which was considered by this Court in Ramchandra Bhikaji Jagtap .vs. Dudharam Langruji Padvekar (Dead) through L.Rs. Bulkabai Padvekar and Ors. reported in 2004 (1) Mh.L.J. 278 as also in Ushabai w/o. Sharadchandra Bannore vs. Wasudeo s/o. Baliramji Mehare and Ors. reported in 2004 (2) Mh.L.J. 594 , the learned trial Court can after obtaining such map with the assistance of the parties and after giving opportunity to the parties to adduce further evidence if they so desire, decide the controversy finally. Hence, since this Court has already directed for appointment of Court Commissioner by order dt.11.11.2003 in view of O.XXVI, R.9 of the Code of Civil Procedure for joint measurement by authorised Official from T.I.L.R., Tq. Manora or D.I.L.R. from district Washim, the map drawn, if any, with relevant record be produced before the trial Court by the Court Commissioner. The trial Court may upon further evidence led, if any, by the parties decide the controversy in the light of the legal position mentioned above and dispose of the suit accordingly. 7. In view of above, the impugned Judgment and Order dt.8.10.1999 passed by the Additional District Judge, Washim in Regular Civil Appeal No.40 of 1997 is set aside. The proceeding is remanded to the trial Court to take further evidence, as directed above and then to decide the controversy afresh and finally on merits according to law. 7. In view of above, the impugned Judgment and Order dt.8.10.1999 passed by the Additional District Judge, Washim in Regular Civil Appeal No.40 of 1997 is set aside. The proceeding is remanded to the trial Court to take further evidence, as directed above and then to decide the controversy afresh and finally on merits according to law. With the above observations and directions, the Second Appeal is disposed of.