Remanded

Pralhad Pandurang Chavan and Ors. v. Trimbak Tukaram Chavan

Bombay HC11 Jun 2012SA/191/2012

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for possession of encroached land, the High Court set aside lower court judgments. The Court held that the District Court failed to discuss reasons for accepting one measurement map over another and remanded the matter for a joint measurement by a Court Commissioner.

What did the court decide?

Impugned orders of trial and District Courts set aside; parties remanded for joint measurement by Court Commissioner; decree to be passed afresh within six months.

Pralhad Pandurang Chavan and Ors. Vs Trimbak Tukaram Chavan — Landlord and Tenant | Bombay HC (2012)

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1 S.A. 191.2012 - [ J ]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO. 191 OF 2012

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Pralhad Pandurang Chavan Age : 70 Years, Occ. Agril., R/o : Ujani, Tq. : Ausa, Dist.: Latur. 2. Raviraj Pralhad Chavan Died – through L.Rs. : 2-A. Smt. Ravati Ravi Chavan Age : 38 Years, Occ. Agril., & Household, R/o : Ujani, Tq. Ausa, Dist.: Latur. 2-B. Yatiraj Ravi Chavan Age : 16 Years, Occ. Education, R/o : Ujani, Tq. Ausa, Dist.: Latur. 2-C. Shruti D/o Ravi Chavan Age : 15 Years, Occ. Education R/o : Ujani, Tq. Ausa, Dist.: Latur. Resp. Nos. 2-B & 2-C are minors u/g of real mother/Resp. 2-A. 3. Shekhar Pralhad Chavan Age : 39 Years, Occ. Agril., R/o : Ujani, Tq. Ausa, .... APPELLANTS/ Dist.: Latur. [ ORI. DEFENDANTS ]

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V E R S U S

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2 S.A. 191.2012 - [ J ]

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Trimbak Tukaram Chavan Age : 69 Years, Occ. Agril., R/o : Ujani, Tq. : Ausa, .... RESPONDENT/ Dist.: Latur. [ ORI. PLAINTIFF ]

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Mr. V.S.Bedre, Advocate for the Appellants.

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Mr. Rajiv B. Deshmukh, Advocate for Respondent.

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CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 11/06/2012.

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ORAL JUDGMENT :

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Heard Mr. V.S.Bedre, learned counsel for the Appellants and

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Mr. Rajiv B. Deshmukh, learned counsel for the respondent.

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The present respondent/plaintiff has filed Suit for possession of encroached area. The trial Court dismissed the Suit. The plaintiff filed Appeal before the District Court. The District Court allowed the Appeal and directed the defendant to hand over possession of 58 R. land to the plaintiff as described in red colour in the map annexed with the Plaint. The defendant has assailed the said Judgment in the present Second Appeal.

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Upon hearing the learned counsel for the respective parties,

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3 S.A. 191.2012 - [ J ]

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the following substantial questions of law arises :

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[i] Whether the appellate Court while reversing the finding of fact arrived at by the trial Court has come within the close quarters of the reasonings given by the trial Court ?

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[ii] Whether the measurement map, whereby only 6 Acres 73 gunthas land i.e. part of the land of the plaintiff was measured, could have been relied to arrive at the finding of encroachment ?

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Admit.

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With the consent of the learned counsel for the respective parties, taken up for final hearing.

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Mr. Bedre, learned counsel for the appellants strenuously contends that the trial Court has believed the measurement map [ Exh. 66 ] drawn by the Cadestral Surveyor, which was on the basis of an application filed by the plaintiff. The appellate Court has not discussed nor given any reasons for accepting the measurement carried out by the Cadestral Surveyor on the application of the plaintiff and for dis-believing the measurement carried out by the Cadestral Surveyor on the application

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4 S.A. 191.2012 - [ J ]

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of the defendant.

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The learned counsel further submits that at the time of partition, the plaintiff was awarded 20 R. more land as it was inferior and the evidence in this regard has not been properly considered by the Court. The plaintiff has failed to prove his ownership over 16 Acres 25 gunthas of the land and the trial Court has rightly come to this conclusion. According to the learned counsel, unless the whole land is measured, the area encroached can not be culled out. In view of that, the Judgment can not be sustained.

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Mr. Deshmukh, learned counsel for the respondent submits that even in the measurement map [ Exh. 69 ] prepared by the Cadestral Surveyor on the application of the defendant, encroachment of 40 R. land is shown. The appellate Court has given reasons for accepting the measurement map [ Exh. 66 ] and discarding the measurement map [ Exh. 69 ]. According to the learned counsel, the measurement carried out on an application of the plaintiff is dated 07/05/1997, whereas the measurement carried out on an application of defendant is 07/02/1997. The defendant could have encroached during the said interregnum period.

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Mr. Deshmukh, learned counsel submits that the District

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5 S.A. 191.2012 - [ J ]

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Court on consideration of the evidence, has come to the correct conclusion.

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With the assistance of the learned counsel, I have gone through the Judgments.

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Both the Courts have come to the conclusion that the present appellant/defendant could not prove that in partition, 20 R. excess land was awarded to the present appellant. The ownership of the land is not a major bone of contention between the parties. The only issue germane for the decision of the present matter would be the extent of encroachment, if it is there. The measurement map [ Exh. 69 ] which was by Cadestral Surveyor on the application of the present appellant/defendant, shows that the defendant/appellant is in possession of excess 40 R. land, whereas the measurement map [ Exh. 66 ] prepared by the Cadestral Surveyor on the basis of measurement on an application of the plaintiff shows that the defendant has encroached over an area of 58 R. land. There is no joint measurement nor the District Court has discussed that there was any one fixed boundary which is undisputed. Even the District Court has failed to give any reasons for accepting the measurement map [ Exh. 66 ]. Absolutely no discussion is made by the District Court in this regard. Even oral evidence in this regard is not discussed. It would

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6 S.A. 191.2012 - [ J ]

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always be safe to pass a decree for removal of encroachment on the basis of joint measurement of both the lands and not measurement of a part of the land.

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In view of the above, the Judgments passed by the Courts below can not be sustained. It would be appropriate to relegate the parties to the trial Court for decision on the aspect of encroachment after appointing the Court Commissioner to measure the land of the plaintiff and the defendant jointly.

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In the result, I pass the following order :

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The impugned orders passed by the trial Court and the District Court are set aside.

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The parties are relegated before the trial Court i.e. Civil Judge [ Jr. Division ], Ausa, Dist. Latur. The parties shall appear before the trial Court on 02/07/2012.

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The trial Court shall appoint the T.I.L.R. as a Court Commissioner, who shall measure the land S.No. 173/B and land S.No. 173/A owned by the plaintiff and the defendant respectively and submit his report.

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The plaintiff and defendant shall bear the charges of the measurement equally.

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7 S.A. 191.2012 - [ J ]

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The trial Court shall, after receipt of the report and considering the objections and the evidence to be led on the basis of the said measurement, decide the Suit afresh on the aspect of encroachment expeditiously and preferably within the period of six ( 6 ) months from the date of appearance of the parties.

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Rule is accordingly made absolute in above terms. No costs.

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In view of disposal of the Second Appeal, the Civil Application

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is also disposed of.

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[ S.V. GANGAPURWALA,J. ]

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KNP/S.A. 191.2012 - [ J ]

Pralhad Pandurang Chavan and Ors. v. Trimbak Tukaram Chavan

Case brief

What is this about?

What did the court decide?

Pralhad Pandurang Chavan and Ors. v. Trimbak Tukaram Chavan

Case brief

What is this about?

What did the court decide?

What the court decided

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