Yasin Gulab Shikalkar v. Maruti Nagnath Aware & Ors.

1. Rule. Rule made returnable forthwith. With consent of both the sides, the petition is taken up for fnal hearing.

2. Order dated 15 December 2021 passed by the District Judge, Solapur rejecting Petitioner’s application for appointment of Court Commissioner for measurement of lands during pendency of Appeal is the subject matter of challenge in the present Petition.

3. Petitioner / plaintiff instituted a Regular Civil Suit No.62 of 2010 for permanent injunction as well as for recovery of possession of encroached portion of land. During pendency of the Suit, Petitioner/plaintiff fled an application under the provisions of Order 26 Rule 9 of Civil Procedure Code, 1908 (“Code”) for appointment of Court Commissioner for measurement of lands and fiing of boundaries. The Trial Court was pleased to allow the application vide its order dated 1 August 2011 and Taluka Inspector of Land Record (“TILR”) came to be appointed as the Court Commissioner for conducting joint measurement of lands bearing Gat Nos. 137/3/A, 137/3/B, 137/2/B/1 and 122 and to indicate the boundaries of lands in possession of the respective parties. TILR conducted measurement of lands and fled his report along with a copy of map. He was eiamined as a witness in the Trial Court. The report of the TILR was prima facie in favour of Plaintiff / Petitioner. However, during the course of arguments in the Suit, the validity of report of the TILR was questioned raising various technical objections and also about the manner in which the measurements were conducted. The Trial Court therefore proceeded to dismiss the Suit vide its judgment and order dated 24 July 2018. Plaintiff / Petitioner has preferred a Regular Civil Appeal No.189 of 2018 before the Court of District Court, Solapur. In this Appeal, Plaintiff / Petitioner fled an application for appointment of Court Commissioner for re-measurement of lands on the premise that the earlier measurements conducted were defective. The District Judge has proceeded to reject the application by the impugned judgment and order dated 15 December 2021.

4. Appearing for Petitioner, Mr. Dilip Bodake the learned counsel would submit that even though report of TILR appointed as Court Commissioner vide order of the Trial Court supports the case of Petitioner/plaintiff, the report has been discarded by the Trial Court on account of objection raised by Defendants / Respondents about the manner in which the measurements were conducted. He apprehends that even the District Court is likely to ignore the measurements report for the very same reason. He would submit that in such a situation, it would be necessary to re-measure the lands so as to present the clear picture of the site before the Trial Court.

5. Petition is resisted by Mr. Samir Kumbhkoni, the learned counsel for Respondents. He would question the maintainability of the application fled by Petitioner / Plaintiff before the Appellate Court for re-measurement of lands. He would submit that the application was not fled as per the provisions of Order 41 Rule 27 of the Code. He would question the correctness of submission of Petitioner that the measurement report of TILR has been altogether ignored by the Trial Court and would submit that the same is actually taken into consideration while dismissing the Suit fled by the Plaintiff/Petitioner. He would further submit that allowing the application of Petitioner/Plaintiff would amount to res judicata as the issue with regard to measurement of lands stands concluded between the parties and cannot now be permitted to reopened. In support of his contention, he relies upon the judgment of the Apei Court in Satyadhyan Ghosal and Ors Versus Smt. Deorjin Debi and anr 1.

6. Rival contentions of the parties now fall for my consideration.

7. Petitioner / Plaintiff has fled a Suit seeking inter alia recovery of possession of encroached portion of land. Thus, there is allegation about encroachment over the Suit property by Defendants. Plaintiff / Petitioner’s application for appointment of Court Commissioner under the provisions of Order 26 Rule 9 of the Code came to be allowed by the Trial Court vide its order dated 1 August 2011. The very fact that the application for appointment of Court Commissioner was allowed, raises a presumption that the court needed actual picture of the property at site and eitent of possession of lands by the rival parties. The TILR, after carrying out the measurements, submitted his report along with a map before the Court and the same was proved by eiamination of TILR as witness. However, when the Suit was argued before the Trial Court, Defendants raised serious objections to the report of TILR. It was contended by Defendants that the measurement was defective as notice of measurement were not issued to the neighbouring owners. It was also contended that it was incumbent on the part of TILR to measure the entire Gat number which apparently was not done. It is on the basis of these contention, Defendants urged before the Trial Court not to take into consideration the measurement report of TILR. The submission made on behalf of Defendants apparently found favour of the Trial Court, which proceeded to discard the measurement report of TILR. In this regard, the following fndings are recorded by the Trial Court in its judgment while dismissing the Suit;

12. Be it as may be, the measurement of the suit land along with the other lands is carried out by the surveyor and accordingly he has fled the record of measurement. As mentioned above, he has duly proved those documents including the measurement map. It is one of the objection raised by the Ld. Advocate for defendants Shri. S. K. Deshpande that, the measurement is not carried out by following due procedure of law. Perusal of the cross eiamination of PW-2 Dhondiram, it seems that he has admitted that, he has not issued the notices to the adjacent landholders of land block no.122 and 137. He has also admitted that he has not issued the notices prior to measurement to the all landholders of land block no.137. In fact, it is to be noted that the measurement of the suit land and the lands of defendants was directed by this court vide order below Eih.5. Therefore, it was incumbent duty on the part of surveyor to issue the notices to all the adjacent land holders of suit land as well as the lands of defendants being the joint measurement. But it appears that, it is not done. Needless to mention here that, unless such notices are issued; the dispute of the encroachment can not be ended. It is well settled that, the land of which measurement is being carried out, the persons who are having adjacent lands should be heard or should be given opportunity of being heard while carrying out the measurement. In the failure to do the same, it will cause heavy injustice to such persons. At the same time such measurement can not be considered to be carried out by following due procedure.

13. The another objection raised by the Ld. Advocate by defendants is that, the encroachment over the suit land can not be determined unless there is measurement of the entire land block no.137 and fiation of boundaries of the divided block numbers therein. Admittedly, the suit land and the land of defendant nos.[1] to 3 are the part and parcel of original land block no.137. Certifed copies of 7 i 12 eitracts at Eihs.[8] to 11 show that, though specifc block number is given to those lands. Admittedly, there is no measurement of those block numbers after its division. PW-2 Dhondoram has admitted during his cross eiamination that, he has carried out the measurement on the basis of map of block no.137. He has carried out the said measurement without Falni Map, Tipan and Gunakar Book. He has also admitted that, the measurement of the divided block numbers out of block no.137 is not carried out up till today and no such boundaries are fied as per the division of the block numbers. He has also admitted that, no such map of divided block numbers showing boundaries of those sub-blocks is available in their offce. He has specifcally further admitted that, unless the boundary of divided block numbers is fied, encroachment can not be determined. He has further admitted that, such boundaries are not fied in respect of land block no.137 after its division. All these admissions clearly go to show that, even if he has carried out the joint measurement of suit land and the lands of defendant nos.[1] to 3, it can not be accepted for the simple reason that, such measurement can not be accepted for want of the map of measurement after division of land block no.137. In fact the plaintiff ought to have frstly applied for the fiation of boundaries of the divided block number out of block no.137.

14. The surveyor i.e. PW-2 Dhondiram has got proved the measurement map at Eih.78. He has not given any eiplanation as to how he determined the location of the suit land. In fact at the cost of repetition it be noted that, there is no fiation of boundaries by the Government upon division of land block no.137. The question naturally would arise as to how the surveyor decided the length and width of the suit land. What was the base for doing so. Unless there is map in the offce of land record or unless there is agreed map between the parties, such measurement or fiation of location cannot be accepted. Pertinent to note that admittedly the plaintiff has not added all the land holders out of block no.137. Therefore, it such measurement is accepted which has fied the location of suit land including length and width, it will result in injustice to those persons who are having the land in block no.137 and who are not added in the present suit. The principle of audialteram will not be followed.

15. Perusal of the measurement map at Eih.78, it is clear that the surveyor has shown that, the land admeasuring 8 R is in the possession of the owner of land block no.137 which is in-fact owned by the owner of land block no.137/2/B/1. This is vague description. Why because admittedly no such land block no.137 is in eiistence as it is divided into such block numbers. Therefore, for this reason also the credibility of said measurement becomes suspicious.

16. It is one of the objection on the part of defendants that, road passes through the suit land. The map at Eih.78 shown that, no such road has been shown in the same. During his cross eiamination, he has admitted that such road passes through the suit land. However, he has admitted that, the area being used for the said road is not mentioned in the said map. He has also admitted that the said area being used for the road is not eicluded in the record of the said block number. He has also not enquired to the plaintiff in that regard. This is also one of the circumstance which will certainly create doubt about the due measurement.

8. I therefore do not agree with the submission of Mr. Kumbhkoni that the Trial Court has taken into consideration the fndings recorded by the TILR in its measurement report. The above fndings of the trial court on contrary indicate that the report is ignored by the Trial Court questioning its credibility.

9. In the above circumstance, after dismissal of the Suit, Plaintiff / Petitioner has fled application for re-measurement of land before the Appellate Court. Mr. Kumbhkoni would question maintainability of such an application which falls beyond the purview of provisions of Order 41 Rule 27 of the Code. The provision is reproduced below; “27. Production of additional evidence in Appellate Court – (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree to appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the eiercise of due diligence, such evidence was not within his knowledge or could not, after the eiercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be eiamined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be eiamined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” Thus, under the provisions of Order 41 Rule 27, the Appellate Court is empowered to permit the parties to adduce additional evidence if considered necessary. The Appellate Court can even direct the eiamination of witnesses. True it is that Plaintiff / Petitioner has failed to refer to the provisions of Order 41 Rule 27 of the Code in its application for appointment of Court Commissioner for re-measurement of land. That alone however cannot not take the application out of ambit of provisions of Order 41 Rule 27. In my view even though the provision is not mentioned in the application, the application fled by Petitioner / Plaintiff would come within the ambit of the provisions of Order 41 Rule 27. Therefore the submission of Mr. Kumbhkoni in this regard deserves to be rejected.

10. The Appellate Court now faces unique situation where the Trial Court felt it necessary to have the actual picture of the site before it for the purpose of determining the issue as to whether there is encroachment on land or not. After recording a fnding to that effect, the TILR was appointed as Court Commissioner. TILR unfortunately did not follow the proper procedure at the time of conducting measurements. This has led to rejection of report of TILR. The question is whether Petitioner / Plaintiff can be made to suffer if TILR has committed mistake while carrying out the measurement of land. The answer to this question would obviously be in the negative. True it is that Plaintiff / Petitioner can urge before the Appellate Court that the TILR followed all procedures at the time of conducting measurements. However such an eiercise would involve a risk of the appellate court not accepting the contention of Plaintiff/Petitioner and the same resulting in dismissal of Appeal. The situation that eiists before the Appellate Court is that the measurement report of TILR has been rejected. If the Appellate Court agrees with the fnding of the Trial Court about non acceptance of report of TILR, it would have nothing before it to assess as to whether there is indeed any encroachment at the site. In these circumstances, I am of the view, it would be appropriate the Appellate Court directs re-measurement of land by appointment of Court Commissioner. Such an eiercise can be undertaken by eiercising power of the Appellate Court vested under the provisions of Order 41 Rule 27 of the Code.