Full Judgment Text
2019:BHC-AS:25840
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4078 OF 2018
1. Arjun Rambhau Dhankude
Age : Adult, Occupation : Business,
R/at : Baner, Dhakude waste,
Tal. Haveli, Dist. Pune.
2. Shivlal Dhondiba Dhankude
Age : Adult, Occupation, Agriculturist,
R/at : Vitthal Rukmini Mandir, Baner,
Pune 411 045.
...Petitioners
Versus
1. Bhanudas Ramchandra Murkute
Age : 58 Years, Occupation : Agriculturist
2. Kalpana Balkrishna Murkute
Age : 60 Years, Occupation : Household
3. Shraddha Balkrishna Murkute
Age : 33 Years, Occupation : Household
4. Shubham Balkrishna Murkute
Age : 30 Years, Occupation : Business
5. Bhagwan Ramchandra Murkute
Age : 66 years, Occupation : Agriculturist
6. Vitthal Ramchandra Murkute,
Age : 71 Years, Occupation : Agriculturist
7. Yashwant Ramchandra Murkute,
Age : 73 Years, Occupation : Service
All R/at : Survey No. 261, Laxman Park,
Baner, Pune 411 045.
8. Ratnamala Pandurang Tapkir
Age : Adult, Occupation : Household
R/at : Baner, Tapkir Waste,
Tal. Haveli, Dist. Pune.
9. Sharmila Manohar Nakhate
Age : Adult, Occupation : Household,
R/at : Baner, Dhakude Waste,
Tal. Haveli, Dist. Pune
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10. Nirmala Patilbua Pawar
Age : Adult, Occupation : Household,
R/at : Tathawade, Tal. Mulshi, Dist. Pune
11. Pramila Bhanudas Pawar,
Age : Adult, Occupation : Household,
R/at : Thergaon, Tal Haveli, Dist. Pune. …Respondents
Mr.Chaitanya Nikte a/w. Ms. Sneha Bhange for petitioner.
Mr.Arvind P. Purohit for respondent Nos.1 to 7.
CORAM: N. J. JAMADAR, J.
nd
RESERVED ON : 22 July, 2019
th
PRONOUNCED ON : 28 August, 2019
JUDGMENT :
1. This petition under Article 227 of the Constitution of India assails
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legality, propriety and correctness of the order passed by the learned 5
nd
Joint Civil Judge, Junior Division, Pune, on 22 November 2017, whereby
a Court Commissioner was appointed to measure the land bearing survey
th
No.70, Mouje Baner, Pune and submit report, and the order dated 27
March 2018, whereby the review application preferred against the first
order came to be rejected.
2. The background facts, necessary for the determination of the
petition, can be stated in brief as under :
(a) The respondentplaintiff instituted the suit for perpetual
injunction restraining the defendantspetitioners from
committing encroachment over the suit land, bearing survey
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No.70/6 admeasuring 15 are, out of survey No.70 situated at
Baner, Pune. A decree for perpetual injunction was also sought
against the defendants from causing obstruction to the
possession and enjoyment of the plaintiffs over the suit land.
[The parties are hereinafter referred to in the capacity in which
they are arrayed in Regular Civil Suit No.98 of 2008, wherein the
orders impugned herein, have been passed.]
(b) The plaintiffs averred that they have acquired ownership
over the suit land being the donee, under the registered Gift
Deed executed by Sitabai Tukaram Dhankudethe original owner
thereof. The plaintiffs have been put in possession of the suit
land under the said Gift Deed. The plaintiffs names have been
mutated to the record of rights of the suit land. In the year 2007,
the defendant Nos.1 and 2 have made efforts to authorizedly
erect structure over the suit land by committing encroachment
thereon. The defendants made an attempt to grab an area
admeasuring 3 Gunthas from southern and northern directions
of the suit land and thus the plaintiffs were constrained to seek
injunction against the defendants from committing
encroachment and causing obstruction to the peaceful possession
and enjoyment of the plaintiffs over the suit land.
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(c) The defendant resisted the suit. The plaintiff No.1 was
crossexamined. Thereafter, an application for appointment of
Court Commissioner (Exh.100) came to be tendered by the
plaintiffs. It was averred in the said application that for
elucidation of the the controversy and determination on merits
it was necessary to measure the suit land, bearing survey
No.70/6, and thus, Taluka Inspector of Land Records, (T.I.L.R.),
Pune be appointed as a Court Commissioner with a direction to
measure the suit land and submit report.
(d) The defendants resisted the application on the ground
that the suit is not for removal of encroachment but for
injunction simplicitor. No reason was assigned in the application
as to why the appointment of a Court Commissioner was
necessary and how it would assist the Court in adjudication of
the dispute.
nd
3. By the impugned order dated 22 November 2017, the learned Civil
Judge was persuaded to appoint the Court Commissioner holding, inter
alia, that the dispute between the parties was regarding boundaries and
possession over the suit land. Though the land bearing survey No.70 was
got demarcated through TILR by the plaintiffs, yet, the entire survey
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number 70 was not measured. Thus, it was necessary to measure the entire
survey No.70 to ascertain alleged encroachment. The learned Civil Judge
has, thus, appointed the TILR, Pune to measure entire survey No.70 and
demarcate and fix the boundaries of said survey number along with sub
plots (Pot Hissa) of respective lands as per possession of parties and actual
revenue record and submit report indicating the possession of the
respective parties and encroachment, if any, over survey No.70(6).
4. The p etitionersdefendants sought review of the order by filing
application (Exh.105). The learned Civil Judge, however, rejected the
application for review on the ground that no case for review was made out.
Being aggrieved by, and dissatisfied with, the order of appointment of TILR
as a Court Commissioner to measure survey No.70 and subsequent order of
rejection of the prayer to review the first order, the defendants have
invoked the writ jurisdiction of this Court.
5. I have heard Shri Chaitanya Nikte, the learned counsel for the
petitioners and Shri Arvind Purohit, the learned counsel for the respondent
Nos. 1 to 7 at a considerable length.
6. The learned counsel for the petitioners strenuously urged that the
impugned order of appointment of the Court Commissioner is wholly
unwarranted and in dissonance with the settled legal position in the matter
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of appointment of the Court Commissioner. Drawing the attention of the
Court to the plaint in the suit, which has been instituted for injunction, it
was urged that, in the absence of a clear assertion that there is a dispute
regarding the alleged encroachment over the suit land, appointment of a
Court Commissioner, that too, after the plaintiff No.1 has been cross
examined, is legally impermissible. The learned counsel for the petitioners
further submitted that the crossexamination of the plaintiff No.1
demolishes the very substratum of the plaintiffs case that they are in
possession and occupation of the suit land. In view of the clear and
unequivocal admissions in the crossexamination that the plaintiffs have
not been in possession of the suit land since the year 1983, the endevour of
the petitioners to fill in the lacuna and collect evidence under the guise of
court commission to elucidate the situation, could not have been acceded
to by the learned Trial Judge, urged the learned counsel for the petitioners.
In substance, the thrust of the submission on behalf of the petitioners was
that since the suit has been instituted for injunction simplicitor, without
there being a specific case of encroachment at the hands of the defendants,
the Court Commissioner could not have been appointed.
7. In opposition to this, the learned counsel for the respondents would
support the impugned order. The learned counsel for the respondents
stoutly contested the claim of the petitioners that there are no averments in
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the plaint regarding the encroachment at the hands of the defendants.
Taking me through the plaint, wherein certain averments regarding the
encroachment and construction of a school namely 'Parvatibai Dhondiba
Dhankude Prathamik Vidyalaya', has been made, it was submitted that the
very foundation of the suit is the alleged encroachment at the hands of the
defendants. It was further submitted that it is settled legal position that,
when there is a dispute regarding the boundaries of the disputed property
and allegation of encroachment, the appointment of a Court Commissioner
is imperative and in the absence of such report of the competent surveyor,
the Court is not equipped to effectively adjudicate the dispute. In any
event, according to the learned counsel for the respondents, no prejudice
would be caused to the defendants as the defendants will have adequate
opportunity to object to the report of the Court Commissioner. In this view
of the matter, in exercise of the extraordinary jurisdiction, this Court
should not interfere with the order passed by the learned trial Court which
would aid the adjudication of the dispute between the parties effectively,
urged the learned counsel for the respondents.
8. I have given anxious consideration to the submissions advanced
across the bar. At the outset, it is imperative to note that the plaintiffs
sought the appointment of cadastral surveyor to measure the suit land
bearing survey No.70/2016 and submit a report thereof along with a map
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to the Court. In the said application (Exh.100), the only assertion which is
of relevance is that, the appointment of the Court Commissioner to
measure the suit land, bearing survey No.70/6, would assist the court in
adjudicating the dispute on merits. In the reply to the said application, the
defendantspetitioners categorically asserted that the suit has not been
instituted for removal of encroachment but only for perpetual injunction
simplicitor. In that backdrop, the defendants contended that the
appointment of the Court Commissioner and the measurement of the suit
land would be of no assistance in determination of the controversy.
9. In the light of the aforesaid rival contentions, the learned Civil
Judge, in the impugned order, recorded that the dispute between the
parties was regarding boundaries and possession over the suit land. It was
further observed that though the plaintiffs have measured survey No.70/2,
the entire survey No.70 was not measured. The trial Court was of the view
that in order to ascertain encroachment, measurement of the entire survey
number was imperative, and, thus, the trial Court directed the appointment
of TILR, Pune to measure entire survey No.70 situated at Mouje Baner,
.
Dist. Pune. Evidently, the trial Court has proceeded on the premise that the
real question in controversy was the alleged encroachment over the suit
land at the hands of the defendants. Whether this approach of the trial
Court is justifiable in the backdrop of the facts borne out by record?
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10. On the perusal of the copy of the plaint, it becomes abundantly clear
that the suit was instituted for mandatory and perpetual injunction. The
plaintiffs apprehend that the defendants would encroach upon the suit land
bearing survey No.70/6, and, thus, sought to restrain the defendants from
committing the encroachment. An injunctive relief was further sought to
restrain the defendants from causing obstruction to the possession and
enjoyment of the plaintiffs over the suit land. On a fair reading of the
plaint, an inference becomes inescapable that the plaintiffs have
approached the Court in anticipation of the alleged encroachment at the
hands of the defendants. Undoubtedly, in the plaint, there are averments to
the effect that the defendants have made an effort to commit encroachment
from the southern and northern side of the suit land to the extent of 3 R
land each, yet, the plaintiffs did not categorically assert that the defendants
have committed encroachment over the particular portion of the suit land.
Nor the plaintiffs sought recovery of the possession of the said land after
removal of encroachment.
11. In this backdrop, the learned counsel for the petitioners placed
reliance upon a judgment of this Court in the case of Dnyandeo Vithal
1
Salke & Ors. Vs. Dagdu Kadar Inamdar , wherein also the suit was
instituted
1 2017 (3) Mh.L.J. 314
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for injunction simplicitor and there was no prayer for removal of
encroachment. In that context, the learned Single Judge of this Court had
observed that when the suit has been filed for injunction simplicitor, the
Court failed to understand as to how the Civil Judge could have passed
order directing appointment of T.I.L.R., with direction to submit his factual
report as regards possession and user of the land. This amounts to
collection of evidence which is not the object of the provisions regarding
appointment of the Court Commissioner, as contained in Order 26 Rule 9
of the Civil Procedure Code.
12. The learned counsel for the petitioner would urge that the aforesaid
pronouncement is on all four with the facts of the instant case as herein
also, the plaintiffs have instituted a suit for injunction simplicitor and
sought appointment of the Court Commissioner to bring evidence as
regards possession, on record.
13.
Per contra, the learned counsel for the respondent Nos.1 to 7 banked
upon a judgment of the Supreme court in the case of Shreepath Vs.
2
Rajendra Prasad wherein, in the context of the fact that there was a
serious dispute as regards the area and boundaries of the land in question,
the Supreme Court observed that a survey commission to locate the
identity of the plot in dispute ought to have been appointed. The
2 JT 2000(7) SC 379
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observations of the Supreme Court in paragraph 4 read as under :
“4 In our opinion, this contention is correct. Since there was a
serious dispute with regard to the area and boundaries of the land
in question, especially with regard to its identity, the courts
below, before decreeing the suit should have got the identity
established by issuing a survey commission to locate the plot in
dispute and find out whether it formed part of Khasra No. 257/3
or Khasra No. 257/1. This having not been done has resulted in
serious miscarriage of justice. We consequently allow the appeal,
set side the order passed by the courts below as affirmed by the
High Court and remand the case to the trial court to dispose of
the suit afresh in the light of the observations made above and in
accordance with law.”
14. A strong reliance was also placed on a judgment of this Court in the
case of Kolhapuri Bandu Lakade Vs. Yallappa Chinappa Lakade, Decd.,
3
Thru' Pooja @ Poojari Y. Lakade & Ors. , wherein the learned Single
Judge of this Court had taken a survey of the authorities on the aspect of
the appointment of Court Commissioner, and, after placing reliance upon
the judgment of the Supreme Court in the case of Haryana Waqf Board
4
Vs. Shanti Sarup & Ors. , culled out the legal position in paragraph 14 as
under :
“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
3 2011 (3) Bom. C.R. 807
4 (2008) 8 SCC 671
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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 further been observed that the party who was not
aggrieved would also prove how his conclusions are correct.”
[ emphasis supplied ]
15. The learned counsel for the petitioners also drew the attention of the
Court to the observations of the learned Single Judge in paragraph 9 of the
said judgment which reads as under :
“19. In that view of the matter, to find out as to whether
the Defendants have, in fact, encroached upon the City
Survey No.1894 or not, I find that the appointment of Court
Commissioner would assist the Court in arriving at the just
decision. Needless to state that, as has been consistently
observed, the report of the Court Commissioner would not be
conclusive and if any of the parties are aggrieved by the
same, such a party would always be entitled to cross
examine the Court Commissioner, so as to challenge the
veracity of the report.”
16. Banking upon the aforesaid observations, it was urged that no
prejudice as such would be caused to the petitioners if the Court
Commissioner measures the land and submits the report as the defendants
would have ample opportunity to file their objection to the report, and, if
need be, cross examine the surveyor.
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17. I find it rather difficult to accede to the broad submission on behalf
of the respondents that the fact that the other side has an opportunity to
object to the report of the Court Commissioner and may crossexamine the
Court Commissioner would obviate the examination of the justifiability of
the appointment of the Court Commissioner itself. It is pertinent to note
that in the case of Kolhapuri Bandu Lakade (Supra), this Court had made
it clear that the suit therein was instituted for declaration and restoration
of possession after removing the encroachment by the respondent/
defendant therein. A positive case of encroachment at the hands of the
defendants was, apparently, made out in the said case.
18. In the case at hand, as observed earlier, the tenor of the plaint
indicates that the suit was instituted to preempt the defendants from
causing encroachment over the suit land. What tilts the scale is the fact that
the area of the suit land bearing survey No.70/6 was stated to be of 15 Are.
According to the plaintiffs, the defendants attempted to commit
encroachment over an area admeasuring 3 are from the southern and
northern side. In the context of the total area of 15 Are, the encroachment
to the tune of 3 Are each from southern and northern side can be neither
said to be insignificant nor inconsequential. It is not the case that even
subsequent to the institution of the suit, the plaintiffs made a positive
assertion that the defendants have committed encroachment over a
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particular area of the suit land. Observations of the learned Civil Judge in
the impugned order to the effect that the plaintiffs submitted that during
the pendency of the suit, the defendants encroached upon the land to the
extent of 3 Are, are not borne out by either the averments in the plaint or
any other material on record.
19. The fact that in the application for appointment of the Court
Commissioner (Exh.100) also, there was no whisper about encroachment
at the hands of the defendants could not have been ignored by the learned
Civil Judge. As narrated above, a general assertion was made in the said
application that the appointment of the Court Commissioner to measure
the suit land would assist the Court in the determination of the controversy
on merits. In this view of the matter, it would be rather hazardous to draw
an inference that the plaintiffs had instituted the suit for removal of
encroachment and recovery of the possession of the portion of the suit
land. Thus, the justifiability of the appointment of the Court Commissioner
on the premise that there was a dispute about the encroachment over the
suit land becomes questionable.
20. At this juncture, the stage at which the application (Exh.100) was
preferred assumes critical significance. The said application was,
admittedly, filed after the plaintiffBhanudas was cross examined. In the
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cross examination of the plaintiff, it was elicited that the defendants and
their predecessorininterest have been in occupation of the lands bearing
survey Nos.70/6 (suit land), 70/7 and 70/8 since prior to the birth of the
plaintiff. He further conceded that since the year 1998, a school, namely
‘Parvatibai Dhondiba Dhankude Prathamik Vidyalaya’ is operated from the
land bearing survey No. 70/6. The plaintiff had the candour to concede
that since the year 1983, the suit land has not been in the possession of the
plaintiffs. It was further admitted in no uncertain terms that the defendants
have been in the occupation of the suit land as the owners thereof and
nobody has ever caused obstruction to the possession of the defendants
over the suit land.
21. In the light of the aforesaid admissions, which substantially demolish
the case of the plaintiffs based on proprietary title and possession over the
suit land, the trial court could not have directed the appointment of the
Court Commissioner with a further direction to the Court Commissioner to
ascertain the possession of the parties. In fact, even the plaintiffs have not
sought such relief in the application (Exh.100). The appointment of the
Court Commissioner, in this factsituation, was nothing but an endevour to
indirectly collect the evidence to wriggle out of the aforesaid admissions,
elicited during the course of crossexamination.
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22. For the foregoing reasons, I am impelled to hold that, in the facts of
the instant case, the learned Civil Judge was not at all justified in directing
the appointment of the Court Commissioner as the suit was instituted for
injunction simplicitor; there was no positive case of encroachment at the
hands of the defendants over the definite portion of the suit land and the
plaintiffs had conceded in the cross examination that the plaintiffs were
never in possession of the suit land and the defendants have been all along
in possession thereof. Thus, the impugned order which borders on
perversity, if viewed through the aforesaid prism, deserves to be quashed
and set aside.
23. Resultantly, the petition deserves to be allowed. Hence I pass the
following order :
O R D E R
(i) The petition stands allowed.
nd
(ii) The impugned order dated 22 November 2017 of
appointment of the Court Commissioner and the order dated
th
27 March 2018, whereby the prayer for review thereof was
rejected, stand quashed and set aside.
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(iii) The application preferred by the plaintiffsrespondents
for appointment of the Court Commissioner (Exh.100) stands
rejected.
(iv) Rule is made absolute in aforesaid terms.
No costs
[ N.J. JAMADAR, J. ]
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