Dismissed

Pradip Pitambar Patil and Another v. Sitaram Gulabchand Agrawal and Others

Bombay HC13 Jan 2014AO/89/2013

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a first appellate order remanding a property suit for encroachment. The court held that appointing a local commissioner for demarcation was necessary when the lower court failed to consider its own record regarding the commissioner's report, citing Supreme Court precedents.

What did the court decide?

The appeal against the order of remand was dismissed and the associated civil application was disposed of without survival.

Pradip Pitambar Patil and Another Vs Sitaram Gulabchand… — Property and Title | Bombay HC (2014)

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ao89.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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APPEAL FROM ORDER NO.89 OF 2013

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WITH

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CIVIL APPLICATION NO.10749 OF 2013

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1) Pradip Pitambar Patil, Age-53 years, Occu:Business

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[Orig. Defendant No.1(b)]

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2) Draupadibai Pitambar Patil, Age-70 years, Occu:Household, [Orig. Defendant No.1(c)],

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 Nos.1 and 2 R/o-Shantinagar,
 Bhusawal, Dist-Jalgaon.
...APPELLANTS

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VERSUS

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1) Sitaram Gulabchand Agrawal, Age-68 years, Occu:Business & Agri. R/o-Sarafbajar, Bhusawal,

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[Orig. Plaintiff]

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2) Dr. Vijay Pitambar Patil, Age-60 years, Occu:Medical Practitioner, R/o-Sharda Nagar, Bhusawal,

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[Orig. Defendant No.1(a)] ,

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3) Pandit Trambak Mohite, Age-45 years, Occu:Nil, [Orig. Defendant No.2] ,

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4) Kanu Mohan Gujmal,
 Age-45 years, Occu:Service,
[Orig. Defendant No.3]

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 Resp. Nos.3 and 4
 R/o-Weekly Market,
 Bhusawal, Dist-Jalgaon.
...RESPONDENTS

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 ...
 Shri.Praveen B. Gamot Advocate for
 Appellants.
 Shri. Satyajit S. Bora Advocate for
 Respondent No.1.
 Respondent Nos. 2 to 4 are formal parties.
 ...

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CORAM: A.I.S. CHEEMA, J.

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DATE OF RESERVING JUDGMENT : 07TH JANUARY,2014.
 DATE OF PRONOUNCING JUDGMENT: 13TH JANUARY, 2014.

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JUDGMENT :

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1.Admit. Heard the matter finally, by
consent of the learned counsel appearing for the
parties.

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2.The Appellants are aggrieved and

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dissatisfied by the Judgment and order dated 15th

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July, 2013 passed by the District Judge-3,
Jalgaon, remanding the matter back to the trial
Court for adjudication of Regular Civil Suit No.29
of 1978 afresh. The Judgment was passed by the
District Judge in Regular Civil Appeal No.99 of
2007.

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3.One Gulabchand Daulatram Agrawal brought
Regular Civil Suit No.29 of 1978 against Pitambar
Undru Patil and original Defendant Nos. 2 and 3.
On death of Pitambar Patil, his legal heirs were
brought on record. On death of Gulabchand Agrawal,
his legal heir - Sitaram Gulabchand Agrawal came
on record to pursue the Suit.

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4.The Suit was brought for removal of

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encroachment. Original Plaintiff claimed that
C.T.S. No.3281 at Bhusawal was his property

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purchased in the year 1975 and on the west there

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was C.T.S. No.3277 belonging to original Defendant
No.1 purchased on 24th June, 1971. It was claimed

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that original Defendant No.1 encroached on
property of original Plaintiff to the extent of
25ft. (East-West) X 10ft. (North-South). Original
Defendant Nos.2 and 3 were arrayed as tenants of
original Defendant No.1. Thus, the suit was
brought for removal of encroachment.

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5.The trial Court found that the original
Plaintiff had failed to prove encroachment as
claimed, as no authentic person from city survey
office was examined and the encroachment as
claimed, was not identifiable. The trial Court
also found that on death of original Plaintiff
Gulabchand, only Sitaram, son of original
Plaintiff has been brought on record and his four
brothers and mother were not brought on record and
so the suit was bad for non-joinder of necessary
parties. The suit came to be dismissed.

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6.Against the dismissal of suit, Plaintiff
Sitaram filed the Regular Civil Appeal No.99 of

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2007. The first appellate Court in its Judgment
dated 15th July, 2013, went through the record of
the trial Court and found that Roznama dated 31st
August, 1987 showed that Exhibit 42 was letter
sent to city survey office wherein original
Plaintiff and original Defendant were informed to
remain present on the site but they remained
absent for the measurement by the Court
Commissioner and hence the Commissioner could not

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do anything as directed by the Court. The trial
Court passed order on Exhibit 41 directing
original Plaintiff to deposit Rs.100/- as
commission fee and matter was further adjourned
for depositing the fees. The original Plaintiff
deposited commission fee on 8th September, 1987
and commission order was issued vide Exhibit 43 on

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17th September, 1987. The report of Commissioner
was awaited till 21st January, 1989 and suit was
fixed for awaiting report of Commissioner. It was

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noticed by the first appellate Court that record
did not show that the Commissioner's report was

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received or any report or map was filed. Thus, it
was observed that it could not be understood as to
on what basis the trial Court observed that the
original Plaintiff ought to have examined
authentic person of city survey office. The first
appellate Court referred to Judgment in the matter
of Ramchandra Bhikaji Jagtap vs. Budharam Langruji
Padvekar, 2004(1) B.C.J. 101 and found that it was
not appropriate for the trial Court to proceed to
decide the suit without getting the Commissioner's
report. Taking overall view of the matter, the
first appellate Court set aside the Judgment and
decree and remanded the suit with the direction to
the trial Court to get fresh commission fee
deposited from Plaintiff and call Commissioner's
report and adjudicate the dispute between the
parties expeditiously, the suit being of 1977.

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7.The present Appeal is filed by original
Defendant Nos.1(b) and 1(c), taking exception to
the above Judgment. It is claimed that the first

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appellate Court committed error in remanding back
the suit. The remand order cannot be passed to
permit the parties to make good the lapses left in
the trial. The burden to prove encroachment was on
original Plaintiff and original Plaintiff had
failed to prove his case and the matter should not
have been remanded. Before the first appellate
Court, application to lead additional evidence
under Order XLI Rule 27 of the Code of Civil
Procedure was filed as it was learnt that the
original Plaintiff had sold the suit property, but
the said application was not dealt with by the
first appellate Court.

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8.It has been argued by Shri.Gamot,

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learned counsel for the Appellants that all the
legal heirs of deceased Gulabchand, the original
Plaintiff, had not been brought on record and suit
suffered from non-joinder of necessary parties. It

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is submitted that during pendency of the suit, the
original Plaintiff has sold the property and thus

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the original Plaintiff could not have maintained

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the suit. Application was moved in this regard,
but the first appellate Court did not consider the
same. The learned counsel also submitted that the
original Defendant No.1 had purchased the property
with construction and there was no encroachment.
The learned counsel wants the Judgment of the
first appellate Court to be set aside.

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9.Shri. Bora, learned counsel appearing for

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Respondent No.1 (original Plaintiff) submitted
that although the Commissioner's fee was
deposited, without waiting for Commissioner's
report, the trial Court disposed the suit and the
first appellate Court rightly remanded the matter.
He has referred to the following reported
Judgments:

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(i) Haryana Waqf Board vs. Shanti
Sarup and others, (2008) 8 Supreme
Court Cases, 671,

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(ii) Yeshwant Bhaduji Ghuse vs.
Vithoba Laxman Ladekar, 2010(3)
Bom.C.R., 373,

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(iii) Kolhapuri Bandu Lakade vs.
Yallappa Chinappa Lakade, 2011(3)
Bom.C.R., 807,

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(iv) Sou. Ashatai w/o Vijayrao
Warekar and others vs. Champatrao
Laxmanrao Kale and another, 2011(0)
BCI 275.

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10. It is argued by the learned counsel for Respondent No.1 that in view of the ratio laid down in the above referred reported Judgments, in order to decide whether or not there has been encroachment between the neighbours, authentic measurement is necessary. It has been further argued that Sitaram is the KARTA of the family after death of original Plaintiff Gulabchand Agrawal and so the suit does not suffer for want

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of necessary parties, as the KARTA can take care

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of welfare of the joint family and can maintain a

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suit for removal of encroachment. The learned
counsel submitted that during pendency of the
suit, the property has been sold to (1) Sanjay
Jangle (2) Shripad Jangle (3) Suryakant Jangle and
(4) Jagdish Jangle, on 30th January, 1997. It is
his submission that it is responsibility between
the original Plaintiff and his purchaser, and it
is for the Plaintiff to ensure that his purchaser
gets clear title and thus Plaintiff can pursue the
suit.

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11.Present Appeal is under Order XLIII Rule
1(u) of the Code of Civil Procedure, 1908
("C.P.C." in brief), against order of remand
passed by the first appellate Court. In this
regard in the matter of Narayanan vs. Kumaran and
others, (2004) 4 Supreme Court Cases, 26, it was
observed in Para 17, as under:

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"17. It is obvious from the above

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rule that an appeal will lie from an
order of remand only in those cases
in which an appeal would lie against
the decree if the appellate court
instead of making an order of remand
had passed a decree on the strength
of the adjudication on which the
order of remand was passed. The test
is whether in the circumstances an
appeal would lie if the order of
remand were to be treated as a
decree and not a mere order. In
these circumstances, it is quite
safe to adopt that appeal under
Order 43 Rule 1 clause (u) should be
heard only on the ground enumerated
in Section 100. We, therefore,
accept the contention of Mr. T.L.V.
Iyer and hold that the appellant
under an appeal under Order 43 Rule
1 clause (u) is not entitled to
agitate questions of facts. We,
therefore, hold that in an appeal
against an order of remand under
this clause, the High Court can and
should confine itself to such
facts, conclusions and decisions

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which have a bearing on the order of
remand and cannot canvass all the
findings of facts arrived at by the
lower appellate court."

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12.Keeping in view the above observations of

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the Hon'ble Supreme Court, the challenge can be
allowed to be confined and limited to see whether
or not the order of remand was appropriate.

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13.It is clear that the trial Court

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dismissed the suit mainly on the ground that there
was no authentic map and no documentary or oral

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evidence was available regarding the alleged
encroached portion. It is clear that the trial
Court did not consider its own record whether
report of Commissioner which was called has been
received. It was necessary to insist on compliance

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of orders of the Court calling the Commissioner's
report. Learned counsel for Respondent No.1 has

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rightly relied on the Judgments referred above,
especially the Judgment in the matter of Haryana

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Waqf Board vs. Shanti Sarup and others. In that
matter the trial Court had rejected application
under Order 26 Rule 9 of C.P.C. It was noticed
that only controversy between the parties was
regarding demarcation of suit land because the
land of Respondent was adjacent to the suit land
and the application for demarcation filed before
the trial Court was wrongly rejected. In that
matter, High Court had summarily dismissed the
second appeal. The Hon'ble Supreme Court observed

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that the High Court ought to have considered,
whether in view of the nature of dispute and in
the facts of the said case, local Commissioner
should be appointed for the purpose of demarcation
in respect of the suit land. Consequently, the
Judgment and decree passed in second appeal was
set aside by the Hon'ble Supreme Court and the
second appeal was restored.

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present one, unless Plaintiff has already obtained

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authentic report of demarcation from revenue
authorities like City Surveyor or Cadastral

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Surveyor, it is appropriate for the Court to

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direct investigation by appointing local expert
commissioner as provided under Order XXVI Rule 9
of the C.P.C.

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15.For such reasons no defect can be found

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with the Judgment of the first appellate Court.
Looking to the facts of the present matter, it was
the appropriate course adopted by the first
appellate Court.

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16.(a).The first appellate Court while
setting aside the Judgment and decree of the trial
Court, does not appear to have gone into the
aspect regarding finding of the trial Court
regarding non-joinder of necessary parties. The
Judgment does not show if arguments were advanced

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on this point. Thus, no finding by the first
appellate Court in this regard is available.

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(b).The learned counsel for Appellants

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pointed out copy of application which was filed
before the first appellate Court on 15th July,
2013 to claim that Plaintiff had sold his
property. This was the day on which the Judgment
of Regular Civil Appeal No.99 of 2007 was passed.

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Copy of the application shows that the first
appellate Court endorsed on the application that

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the appeal has already been disposed of and hence
the application was being filed.

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(c).As the earlier Judgment and decree of the

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trial Court has been already set aside, the
parties are at liberty to raise these disputes
before the trial Court.

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17.For such reasons, no interference in the
impugned Judgment of the appellate Court is called
for. Hence I pass following order:

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O R D E R

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(A).This Appeal from Order No.

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89 of 2013 is dismissed. The parties
to bear their own costs.

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(B).Civil Application No.10749
of 2013 does not survive and it is
also disposed of.

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 [A.I.S. CHEEMA, J.]

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asb/JAN14

Pradip Pitambar Patil and Another v. Sitaram Gulabchand Agrawal and Others

Case brief

What is this about?

What did the court decide?

Pradip Pitambar Patil and Another v. Sitaram Gulabchand Agrawal and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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