Gangubai Maruti Khedkar through Gpa Maruti Ramaji Khedkar Vs Dhanraj Motiram Salve and Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

APPEAL FROM ORDER NO. 130 OF 2011 WITH CIVIL APPLICATION NO. 9393 OF 2011

Gangubai Maruti Khedkar

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..Appellant

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Versus

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Dhanraj Motiram Salve & Others..Respondents

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Mr. N.P. Dube h/f. Mr. A.P. Bhandari, Advocate for the
appellant.

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Mr. P.P. Dhawalkar, Advocate for respondent Nos. 1 to 3.

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CORAM : M.T. JOSHI,J.
DATED :27.09.2013

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P.C. :-

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1.Heard both sides. Aggrieved by the direction of
remand of the suit to the Trial Court in an appeal filed
by present appellant, with further direction that present
appellant/defendant shall deposit necessary fees, upon
which the D.I.L.R. to carry fresh measurement and to find
out encroachment, if any, by present appellant/defendant
over the land of the respondent/plaintiff, present appeal
from order is filed by present appellant.

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2.The case of the respondent is that present
appellant/defendant has encroached over 50 R land bearing
No.43/1, situated at Mauje Chedgaon, Tal. Rahuri. P.W.2-

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Milind Kashinath Bhingarde had measured the land and was
examined and believing his testimony, the decree was
passed by the Trial Court. The appellant, therefore,
filed appeal against the decree in the District Court.

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3.Learned District Judge came to the conclusion
that some error has occurred in measurement of the land
of the plaintiff as well as defendant. Further, as
learned Counsel for the appellant submitted before
learned Principal District Judge that proper remedy in
the matter shall be to remand, same was accepted and it
was directed that the D.I.L.R. shall measure the land of
the plaintiff as well as defendant upon deposit of
necessary fees by the appellant/defendant.

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4.The grievance of the appellant/defendant in the
present appeal is that though the matter is remanded
back, learned Principal District Judge has answered point
regarding proof of encroachment in the affirmative,
though in the operative order, he has ultimately declared
that the Trial Court shall decide the matter afresh
without being influenced by the observations made in the
judgment. It was further submitted that when the
plaintiff has to prove his case, learned Appellate Judge
should not have directed present appellant/defendant to
deposit fees of the commission.

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5.Learned Counsel for the respondent/plaintiff has
no objection for removal of term "Yes" in the finding.
He, however, submitted that since learned District Judge
has taken pains to go through the entire record and found
exact error at the time of measurement by P.W.2, those
observation would be useful for further guidance.
Further, learned Principal District Judge has
categorically in final order has declared that the matter
shall be decided afresh without being influenced by the
judgment, the findings may not be disturbed. During
arguments, he further candidly submitted that the
respondent/plaintiff would deposit 50% of the necessary
fees.

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6.On the basis of above material, following
substantial question of law arises in the appeal from
order :-

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(i)Whether learned Principal District Judge
has committed patent error in giving finding in
affirmative as regards encroachment and
directing present appellant to deposit entire
fees of the D.I.L.R.?

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7.Admit.

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8.The judgment of learned Principal District Judge
would show that learned Principal District Judge has
taken into consideration the entire evidence on record
and found out where the error has occurred at the time of
measurement by P.W.2 i.e. non-consideration of the area
under the stream. Therefore, only as a guideline those
observations were made and it was made clear in the final
order. However, while doing so, learned Principal
District Judge has against point No.1 has returned
finding as "Yes" which may unnecessarily mislead the
Trial Court. In the circumstances, the answer "Yes" to
point No.1 is set aside.

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9.As regards fees to be paid for fresh
measurement, learned Principal District Judge has
observed that since present appellant/defendant has
himself prayed for remand of the case, she should pay
necessary fees of D.I.L.R. It should, however, be noted
that the respondent/plaintiff has to prove their case.
Considering these facts on record, in my view, both the
parties can be directed to pay 50% of the fees each of
the D.I.L.R.

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10.In the circumstances, following order is

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passed :-

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( 5 ) ao130.11

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(i)The appeal is partly allowed without
any order as to costs.

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(ii)Recording of finding as "Yes" as
against point No.1 in the impugned judgment is
hereby set aside.

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(iii)Further, order of the Principal
DistrictJudgedirectingpresent
appellant/defendant to pay entire fees of the
D.I.L.R. is hereby set aside. Instead, it is
directed that both the parties shall deposit the
amount in equal proportion towards fees to be
paid to the D.I.L.R.

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11.In view of disposal of the Appeal from Order,
connected Civil Application does not survive and stands
disposed of.

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 [M.T. JOSHI,J.]

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snk /2013/SEP13/ao130.11

Gangubai Maruti Khedkar through Gpa Maruti Ramaji Khedkar v. Dhanraj Motiram Salve and Ors.

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Gangubai Maruti Khedkar through Gpa Maruti Ramaji Khedkar v. Dhanraj Motiram Salve and Ors.

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