Pandit Gurumukh Chavan and Another Vs the State of Maharashtra through Collector, Jalgaon, Collector Office, Jalgaon and Another

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO.470 OF 2021

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WITH

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CIVIL APPLICATION NO.11907/2021

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Pandit Gurumukh Chavan and Another = APPELLANTS

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(orig.Plaintiffs)

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VERSUS

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The State of Maharashtra & Anr. = RESPONDENTS (Orig.Defendants)

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Mr.SG Chapalgaonkar, Advocate for Appellants; Mr.AM Phule, AGP for Respondent-State.

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 -----

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CORAM: SMT.VIBHA KANKANWADI,J.
DATE : 29th October, 2021.

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PER COURT :-

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1.Present appeal has been filed by original
plaintiffs to challenge concurrent judgments and
decree passed by the Courts below.

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2.Thepresentappellants-original
plaintiffs had filed Regular Civil Suit No.6/2012
before 4th Joint Civil Judge, Senior Division,
Jalgaon, for declaration and permanent injunction.
The said suit came to be dismissed on 6.8.2018.

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Their appeal being Regular Civil Appeal No.
155/2018 has been dismissed by the leaned Ad-hoc

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(2)

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District Judge-2, Jalgaon on 11.10.2021. Hence,
this Second Appeal.

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3.Heard learned Advocate and learned AGP
appearing for the respective parties.

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4.It has been vehemently submitted on

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behalf of the appellants-original plaintiffs that
both the Courts below failed to appreciate the
facts of the case and issues involved in the same.
The Trial Court had not framed appropriate issues.
In fact, while framing the issues, burden ought to
have been cast on the shoulders of the defendants
to prove the measurement dated 22.9.2011 carried
out on behalf of them, was legal, proper and in
accordance with law. The case of the plaintiffs is
that they are real brothers and the suit properties
are owned by them. In fact, after the purchase of
the property by plaintiff No.1, it was partitioned
between plaintiff Nos.1 and 2 as per the boundaries
of the same given by them in para No.1 of the
Plaint. The plaintiff had dug a well towards West-
South corner and he was taking irrigated crops.
Defendant No.2 had not acquired any land from the

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(3)

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southern side of the original Gut No.25/1 and,
therefore, the plaintiffs are the owners and
possessors of 47 Ares land towards southern side.
The plaintiffs had not encroached upon the land of
the percolation tank. However, defendant No.2,
under pressure of some political rivals of the
plaintiffs, applied to T.I.L.R. for measurement of
Gut No.25. Accordingly, the measurement was
carried out and it was shown that the plaintiffs
had made encroachment to the extent of 47 Ares.
The plaintiffs have taken objection for the
measurements, however, in view of the challenge to
their title, they filed the suit. Though the issue

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was framed by the Trial Court as to whether the
plaintiffs prove that the measurement carried out
on behalf of the defendant No.2 is illegal, it can
be said that the burden is negated. It ought to
have been saddled on the shoulders of the defendant
No.2 to prove that it is legal. Substantial

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questions of law are, therefore, arising in this
case. There is absolutely no documentary evidence
produced by the State Government to show that they

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had ever acquired the land belonging to the
plaintiffs.

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(4)

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5.Learned Advocate for the appellants

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further submitted that this Court can appoint Court
Commissioner and see as to whether the plaintiffs
had made encroachment. In such cases involving
encroachment, appointment of Court Commissioner
would be the appropriate step which was not taken
by both the Courts below and, therefore, after
admitting the Second Appeal, this appointment can
be made. He relied on a decision in the case of
Ram Lal and Ors. Vs. Salig Ram and Ors. - 2019 SCC
Online SC 121, wherein it has been observed by the
Apex Court thus, -

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“18. The fact that the Local
Commissioner’s report, and for that
matter a properly drawn up report, is
requisite in the present case for the
purpose of elucidating the matter in
dispute is not of any debate, for the
order dated 24.01.1991 passed by the
First Appellate Court having attained
finality whereby, additional issues were
remitted for finding on the basis of
Local Commissioner’s report. In the given
set of facts and circumstances, we are
clearly of the view that if the report of
the Local Commissioner was suffering from
an irregularity i.e., want of following
the applicable instructions, the proper
course for the High Court was either to
issue a fresh commission or to remand the
matter for reconsideration but the entire
suit could not have been dismissed for

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(5)

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any irregularity on the part of Local
Commissioner. To put it differently, we
are clearly of the view that if the Local
Commissioner’s report was found wanting
in compliance of applicable instructions
for the purpose of demarcation, it was
only a matter of irregularity and could
have only resulted in discarding of such
a report and requiring a fresh report but
any such flaw, by itself, could have
neither resulted in nullifying the order
requiring appointment ofLocal
Commissioner and for recording a finding
after taking his report nor in dismissal
of the suit. Hence, we are unable to
approve the approach of High Court, where
after rejecting the Commissioner’s
report, the High Court straightway
proceeded to dismiss the suit. The
plaintiffs have beenasserting
encroachment by the defendants on their
land and have also adduced oral and
documentary evidence in that regard. As
noticed, the First Appellate Court had
allowed the appeal and decreed the suit
filed by the plaintiff not only with
reference to the Commissioner’s report
but also with reference to the other
evidence of the parties. Unfortunately,
the High Court appears to have overlooked
the other evidence on record.

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19. Inthetotalityof
circumstances, in our view, for just and
effectual determination of all the
questions involved in the matter, the
proper course is of issuing a fresh
Commission and for direction to the Trial
Court to decide the entire suit afresh on
the issues as originally framed as also
on the additional issues after taking the
report of the Local Commissioner afresh

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(6)

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and affording an opportunity to the
parties to submit their objections, if
any.“

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6.Further reliance has been placed on the
decision in the case ofBento Antonio Gomes alias
Antonio Bento Gomes Vs Rosario Salvador Carneiro
and Ors. - 2014 (4)Mh.L.J. 366, wherein this Court
observed that, when there was boundary dispute
between the parties in respect of immovable
property and evidence of both the parties was not
accepted by the Appellate court, it was necessary
for the Appellate court to remit the matter to
Trial Court to appoint an expert as Commissioner
for doing local investigation. Though application
for appointment was not made, the matter remitted
back with direction to appoint Court Commissioner
for doing local investigation.

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7.Further inHaryana Waqf Board Vs. Shanti

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Sarup and Ors. - (2008) 8 SCC 671, wherein, it has
been held that, Second Appeal should not have been
dismissed summarily and Local Commissioner ought to
have been appointed for demarcation of land.

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(7)

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8.Further in the case ofFatima Gomes

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Furtado and Ors. Indirabai Vinayak Lotlikar and
Ors. - 2016 (2) Mh.L.J. 905, this Court reiterated
the point of appointment of Court Commissioner so
also in the case ofJamir Khan s/o Amir Khan Vs.
Dharamchand s/o Roopchand Sawala and Ors. -
2018(1) Mh.L.J. 174.

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9.Per contra, learned AGP strongly opposed
admission of the Second Appeal and supported the
reasons given by both the Courts below. He
submitted that there was ample opportunity to the
appellants-plaintiffs to get Court Commissioner
appointed before the Trial Court as well as the
first Appellate Court and when no such attempt was
made it cannot be sought for the first time in the
Second Appeal.

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10.At the outset, it is to be noted that the

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suit filed by the present appellants was not for
deciding the encroachment. They were claiming to be
owners of 47 Ares land on the southern side, which

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was then denied by the respondents-defendants.

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Therefore, it was for the plaintiffs to prove

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(8)

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existence of such land and then to show ownership
and possession of the same. The catena of
judgments, relied on by the learned Advocate
appearing for the appellants, will not be
applicable in the instant case as those directions
are given in the suits involving different nature
of disputes. Here when a specific plea about
ownership is raised, then it is for the plaintiffs
to prove as to how the ownership has come to them.
Further, if we consider the evidence of the
plaintiffs’ witness PW-1 – Prakash, it can be seen
that he had knowledge about the measurement that
was carried out on 22.9.2011. The plaintiffs had
legal remedy to apply for super measurement called
“Nimtana” to the appropriate authority. In his
cross-examination, he has admitted that there is
land bearing Gut No.25/4 and 25/5 towards southern
side of Gut No.25. He claimed ignorance as to
whether notices were issued to the adjoining owners
prior to the measurement. He never raised any
objection regarding the measurement of Gut No.25 to
office of T.I.L.R. Therefore, when he never raised
any objection, though he has right or he had right
at the appropriate time also, then he cannot raise

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(9)

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such point now in the Second Appeal when in
addition to the application for Nimtana, he could
have got the Commissioner appointed before the
Trial Court as well as first Appellate Court.

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11.As regards the burden that was put and

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wrong framing of issues also, it cannot be heard at
the stage of Second Appeal when there was ample
opportunity to raise the same before the
appropriate Courts that too at appropriate stage.

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12.Well reasoned orders have been passed by
both the Courts below for arriving at the
conclusion taking into consideration the evidence.
The defendants have examined Sub-Divisional
Engineer – Sanjeev Dalwala and he has produced many
documents. He has also produced the documents in
respect of acquisition of the land. Therefore,
when such kind of evidence was available before the
Courts below, then it was for the plaintiffs to
show that still the area is remaining and they have
not encroached upon the land of the defendants and
47 Ares land, which is alleged to be remaining,
belongs to them. No case is made out to interfere.

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In view of the decision in the case ofKirpa Ram
(deceased) through Lrs. and others Vs. Surendra
Deo Gaur and others, [2021 (3) Mh.L.J. 250] the
Second has to be dismissed at the threshold.
Accordingly it is dismissed. Consequently the Civil
Application stands rejected.

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(SMT. VIBHA KANKANWADI) JUDGE

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BDV

Pandit Gurumukh Chavan and Another v. the State of Maharashtra through Collector, Jalgaon, Collector Office, Jalgaon and Another

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Pandit Gurumukh Chavan and Another v. the State of Maharashtra through Collector, Jalgaon, Collector Office, Jalgaon and Another

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