Dismissed

Karbhari Ramchandra Thengde and Anothers v. Damodhar Gangadhar Thengde and Others

Bombay HC19 Jul 2017CA/9529/2017

Case brief

AI extract

What is this about?

This second appeal regarding a suit for permanent injunction concerning land measurement at Palaswadi village was dismissed. The High Court held that since the appellants did not apply for a Court Commissioner under Order 26 Rule 9 CPC or challenge the surveyor's findings adversely, the concurrent findings below could not be interfered with.

What did the court decide?

Second appeal dismissed; concurrent findings of lower courts upheld.

Karbhari Ramchandra Thengde and Anothers Vs Damodhar… — Land Acquisition | Bombay HC (2017)

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(1)

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491.17sa

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO.491 OF 2017 WITH

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CIVIL APPLICATION NO.9529 OF 2017 IN

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SECOND APPEAL NO.491 OF 2017

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1.Karbnhari s/o Ramchandra Thengde,
Age: 66 years, Occ: Agri.,
R/o. Palaswadi, Tq. Khultabad,
District Aurangabad.

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2.Uttam s/o Ramchandra Thengde,
Age: 58 years, Occ: Agri.,
R/o. Palaswadi, Tq.Khultabad,
District Aurangabad..APPELLANTS

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VERSUS

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1.Damodhar s/o Gangadhar Thengde,
Age: 64 years, Occ: Agri.,
R/o. Palaswadi, Tq.Khultabad,
District Aurangabad.

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2.Uttam s/o Gangadhar Thengde,
Age: 60 years, Occ: Agri.,
R/o. Palaswadi, Tq.Khultabad,
District Aurangabad.

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3. Kautik s/o Khanderao Aute, Age: 48 years, Occ: Agri., R/o. Palaswadi, Tq.Khultabad, District Aurangabad.

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4. Gayabai w/o Khanderao Aute, Age: 73 years, Occ: Agri., R/o. Palaswadi, Tq.Khultabad, District Aurangabad.

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5. Sahebrao s/o Khanderao Aute,

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(2)

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491.17sa

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Age: 50 years, Occ: Agri.,
R/o. Palaswadi, Tq.Khultabad,
District Aurangabad.

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6. Mansab s/o Khanderao Aute, Age: 48 years, Occ: Agri., R/o. Palaswadi, Tq.Khultabad, District Aurangabad. ..RESPONDENTS

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Mr M.G. Kolse Patil, Advocate for appellants;

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CORAM : N.W. SAMBRE, J.
 DATE : 19th JULY, 2017

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ORAL ORDER :

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The present appellants are defendant Nos.

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5 and 6 in Regular Civil Suit No. 84 of 2012 for
perpetual injunction. Respondent Nos. 1 and 2 –
original plaintiffs prayed that the defendants
shall restrain from disturbing their peaceful
possession over the suit property, which was having
Gat No. 469 admeasuring 29 Are situated at village
Palaswadi, Taluka Khultabad, District Aurangabad.

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2.Learned trial Court decreed the suit by
judgment and order dated 10th April, 2014, whereby
restraining defendants-appellants from disturbing
possession of the plaintiffs over the suit property

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491.17sa (3)

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described in paragraph-1 of the plaint. An appeal

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being Regular Civil Appeal No.98 of 2014 came to be
dismissed by judgment and order dated 21st
December, 2016. As such, this second appeal.

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3.Mr. Kolse Patil, learned Counsel for the
appellants, while inviting attention of this Court
to the provisions of Order 23 Rule 9 of the Code of
Civil Procedure, would urge that the trial Court
should have appointed Court Commissioner for the
purpose of carrying out joint measurement of the

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land before decreeing the suit. So as to
substantiate his contention, he has invited
attention of this Court to the judgment delivered
in Kashinath Chandhuji Shastri vs Haribhau Nathuji
Bawanthade, reported in 2006 (Supp.) Bom.C.R. 1018,
particularly paragraphs-6, 8 and 9 thereof.
According to him, the measurements which are relied
upon by both the Courts below are brought on record
by the plaintiffs and as such, are not required to
be appreciated, particularly when it was not joint
measurements.

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491.17sa

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(4)

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4.Perused the judgment of both the Courts
below. The land old Survey No. 8 was given Gat
No.469. The Cadestral Surveyor is examined as
witness PW-2, who has deposed that he received
application on 23rd January, 2008 in his office,

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where he was working as Surveyor. According to
him, he issued notice to adjoining land owners and
fixed date of measurement as 15th May, 2008. It is
then brought on record in his cross examination by
the present appellants that area of Gat No. 469 old
Survey No. 8 was 3 Hectare and 27 Are, which was
divided into six parts. Land Gat No.469 admeasuring
29 Are, Gat No.466 area 52 Are, Gat No.464 area 1
Hectare 13 Are, Gat No. 465 area 56 Are, Gat No.467
area 53 Are, Gat No.468 area 24 Are was taken into
account as reflected in his cross examination.

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5.It is then to be noted that present
appellants subjected the said witness PW-2 to cross
examination and nothing adverse could be brouight
on record so as to infer that the measurement
carried out by PW-2 was incorrect. The appellants-
defendant Nos. 5 and 6 were in such eventuality, if

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(5)

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they were not in agreement with the measurement

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carried out by Cadestral Surveyor, which was
brought on record by the plaintiffs along with
suit, could have moved separate application under
Order 26 Rule 9 of the Code of Civil Procedure for
appointment of Court Commissioner. The appellants
have not taken such recourse to as referred to
above and brought any incriminating material so as
to dispute measurement carried out by PW-2.

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6.As such, in my opinion, I hardly notice

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any error, which calls for interference in
concurrent findings recorded by both the Courts
below. The appeal lacks merit, fails and stands
dismissed.

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7.Consequently, civil application stands

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disposed of.

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Tupe

Karbhari Ramchandra Thengde and Anothers v. Damodhar Gangadhar Thengde and Others

Case brief

What is this about?

What did the court decide?

Karbhari Ramchandra Thengde and Anothers v. Damodhar Gangadhar Thengde and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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