Full Judgment Text
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5847 OF 2021
(Arising out of SLP (C) No.33865 OF 2018)
MATADIN SURAJMAL RAJORIA (DECEASED)
THROUGH SOLE LEGATEE LALITA
SATYANARAYAN KHANDELAWAL APPELLANT(S)
(Plaintiff)
VERSUS
RAMDWAR MAHAVIR PANDE (DEAD)
THR. LRS. & ORS. RESPONDENT(S)
(Defendants)
J U D G M E N T
Hrishikesh Roy, J.
1. Heard Mr. S. Niranjan Reddy, learned senior counsel
for the appellant. The respondents(defendants) are
represented by Mr. V.K. Shukla, learned senior counsel.
2. Leave granted. The appellant now (represented by
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2021.09.21
16:09:15 IST
Reason:
his daughter) filed the Civil Suit No.332/2003 alleging
encroachment by the two defendants namely Ramdwar
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Mahavir Pande and Sudamadevi Pande. The plaintiff’s
contention in the Suit was that on 28.12.1995, he had
purchased land (measuring 1 Hectre 62 Acres) from
Survey No.25 within the municipal limits of Amravati,
for consideration of Rs.2,10,000/. The sale deed
(Exhibit 47) was executed through the plaintiff’s
registered Power of Attorney holder and it was
specified therein that a portion of the purchased
land is encroached by Radhwar Pande and Sudamadevi
Pande. According to the plaintiff, he measured his
land on 23.11.2002 and learnt that the defendant no.1
had committed encroachment to the extent of 35 R from
the Southern side while the defendant no.2 (related to
the defendant no.1), had encroached about 3 R land from
the same Southern side of his land. Both defendants
were asked to remove their encroachment by the
plaintiff and his daughter but the defendants did not
budge. Accordingly, the Suit came to be filed for
declaration, injunction and possession.
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3. In the written statement, the defendant no.1
claimed title over his occupied area on the basis of
sale deed dated 17.04.1969(Exbt. 66) executed by
one Vitthalrao Nanwatkar. Likewise, the defendant
no.2 claimed title over her occupied area, on the
strength of the sale deed dated 02.11.1977(Art.A),
executed by one Shantabai Jaiswal. The defendants
additionally contended that, M/s Edulji Dotimal Ginning
and Pressing Factory Ltd. earlier filed the Civil Suit
No.413 of 1979 against the defendant no.1 Ramdwar
Mahavir Pande for removal of alleged encroachment to
the extent of 7798 square feet. But the said Suit by
M/s Edulji Dotimal was dismissed and the defendants
continued in uninterrupted possession.
4. The Trial Court on the basis of the evidence and
the pleadings, dismissed the suit on 1.9.2008 with the
finding that plaintiff has failed to prove that the
defendants have encroached on his land and accordingly
relief was denied to the plaintiff. The basis for the
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verdict favouring the defendants was because at the
time of purchase, the plaintiff was having knowledge
that some portions of the purchased land were in
possession of two defendants since 1969. The learned
trial Judge noted in the judgment that the plaintiff
failed to annexe any sketch map indicating the
projected encroachment by the defendants. On relief
being refused, the plaintiff filed the Civil Appeal
No.199 of 2008 but the learned Appellate Court endorsed
the Trial Court’s decree, favouring the defendants. The
Court noted that the defendants are residing and are
possessing the disputed area, with the permission of
predecessor in title of the plaintiff and therefore,
they cannot be categorized as encroachers.
5. The above lead to the Second Appeal No.297 of 2013
by the plaintiff. The High Court in the said
proceedings felt the necessity to appoint a surveyor to
measure the suit property, as described in the
respective sale deeds relied by the contesting
litigants. By order dated 7.6.2016, High Court has
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called for a finding through Trial Court, on the
allegation of Encroachment made by the defendants,
after carrying out measurement on the basis of sale
deeds (Exhibits 47,66), whereafter one Amol Giri was
appointed as the Surveyor/Court Commissioner for joint
measurement of the suit property. The Court
Commissioner visited the site on 28.11.2016 in Survey
no. 25/4 in Village Mhasala and prepared the
measurement map (Exhibit 131), in presence of the
parties. The surveyor was examined before the Court on
5.7.2017 and on his cross-examination, the following
was elicited:
“….It is correct to say that, according to
the map, remaining 38 Are land is in possession
of Sudamadevi. 1 Are land means 1076 Sq. Ft. 38
Are agricultural land means 40888 Sq. Ft area.
As per sale deed at Exh.66, Sudamadevi Pande is
owner of 2000 Sq. FT. The land highlighted with
Green colour in the map is in possession of
Sudamadevi Pande. The land in pink colour
towards northern side of the map adjacent to
NMLK letters if measured from green coloured
land it comes to 2000 Sq. Ft. Similarly, if
the lower side of the said colour if joined to
green line towards western side, it will come
to 2000 Sq. Ft. It appearsthat, the land in
Map at Exh. 31 towards southern side of the
land shown in pink colour at the northern side
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is encroached land. The six persons shown in
the Map Exh. 31 were present at the time of
measurement.”
6. The High Court, on being informed of the conclusion
of the survey exercise, on 22.2.2018 ordered the
Appellate Court to certify the 7.6.2016 findings on the
encroachment recorded by the Trial Court, in terms of
Rule 470 of the Civil Manual. Both parties were
directed to present themselves before the Appellate
Court for the ordered exercise. Following such
direction, the first Appellate Court considered the
matter and vide its order dated 10.04.2018, reversed
the findings of the Trial Court and held that, as per
the map prepared by the Court Commissioner, the
defendants had committed encroachment to an extent of
land measuring 38 R (40888 square feet). In view of
such development, on 2.5.2018 the High Court framed the
following substantial question of law for the decision
in the Second Appeal:-
“Whether in the face of order dated 10.04.2018
passed by the appellate Court in pursuance of
direction of this Court for appointment of
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Surveyor and carrying out measurement in the
present case, the concurrent findings rendered
by the two Courts below are sustainable?”
7. The plaintiff’s second appeal was however dismissed
and accordingly the impugned judgment favouring the
defendants is challenged in this appeal.
8. The learned Senior Counsel for the appellant Mr. S.
Niranjan Reddy submits that the High Court failed to
appropriately consider the measurement map (Exhibit
131) and the deposition of the Court appointed Surveyor
and thereby rendered an erroneous finding which
overlooks the encroachment by the respondents-
defendants. According to the appellant the recital in
the plaintiff’s sale deed dated 28.12.1995 (Exhibit 47)
was misconstrued by the Court. It is also the say of
the counsel that the Court should have weighed the fact
that the defendants claim on the basis of the
respective sale deeds (dated 17.04.1969 and 2.11.1977)
mismatch with the land under defendants occupation. The
area occupied measure 38R (40,888 sq. ft.) whereas this
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is not compatible with the extent of land mentioned in
the sale deeds relied by the defendants. As such, it is
argued that due credence should have been given to the
finding of the Court’s Surveyor that the defendants are
in illegal possession of excess land.
9. On the other hand, Mr. V.K. Shukla, learned Senior
Counsel refers to the concurrent findings in favour of
the defendants by the Trial Court, the Appellate Court
and the High Court and argues that the appeal in the
present facts, is not to be entertained by this Court.
For the defendants, the counsel refers to the
plaintiff’s sale deed (Exhibit 47) to point out that
the sale deed itself specifically mentioned the area
under occupation of the two defendants in the land
purchased by the plaintiff. It is therefore argued
that the plaintiff on the basis of the sale deed
(Exhibit 47) can have no legitimate claim on the areas
under occupation of the defendants since before the
sale transaction of the plaintiff.
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10. The contention advanced by the rival counsel
have been considered. While concurrent findings of
Courts below are not to be routinely interfered, it is
seen that there was a second round in the litigation
and another substantial question of law was formulated
by the High Court for adjudication of the second
appeal. However, no specific finding on such question
of law was ever recorded in the impugned judgment. The
learned Judge skirted the issue and instead endorsed
the findings of the courts below to the effect that the
defendants had not made any encroachment, after the
plaintiff purchased the land on 28.12.1995 under the
Exhibit 47 Sale deed. The conclusion in the second
appeal was therefore devoid of any independent finding
on the substantial question of law formulated by the
Court itself on 2.5.2018. With the required finding on
the additional issue, a contrary conclusion favouring
the other side, can’t entirely be ruled out in the
second appeal. This is particularly possible because
of the mismatch between the area under occupation of
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the defendants and the smaller area covered in their
two sale deeds. The aspect of defendants occupation of
certain lands, being mentioned in the plaintiff’s sale
deed, must also weigh with the Court, in view of the
fresh evidence generated by the court appointed
surveyor.
11. The above has persuaded us to hold that the High
Court erred in not recording a finding on the question
of law formulated later, to account for the Court
Surveyor’s report, vis-à-vis the legal battle over the
suit land. Without the decision on the relevant aspect
which goes to the root of the dispute, the impugned
judgment in our assessment, fails the scrutiny of law.
12. In view of the forgoing, we set aside the judgment
dated 14.8.2018 passed by the Bombay High Court, Nagpur
Bench in the Second Appeal no.297/2013. The matter is
remanded back to the High Court to consider and render
a finding on the substantial question of law framed on
2.5.2018 by the learned Judge. It is ordered
accordingly. Regard being had for the long pendency
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for the case and the restricted remand, the High Court
is requested to decide the second appeal expeditiously
and preferably within six months of receipt of this
order.
13. The appeal is accordingly allowed without any order
on costs.
………………………………………………………J.
[R. SUBHASH REDDY]
………………………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
SEPTEMBER 21, 2021
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