Atmaram Laxman Khade and Ors. vs Chanda Dashrath Doiphode and Ors.

The petitioners – defendants take exception to an order dated 24^th June, 2023 passed by the learned Civil Judge, Senior Division, Vaduj, District Satara, on an application (Exhibit-127) in RCS No.169 of 2012 preferred by the petitioners – plaintiffs to remeasure the suit land, whereby the learned Judge was persuaded to reject the application with costs.

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The petitioners have instituted the suit for removal of encroachment and injunction. In the said suit, the petitioners filed an application for appointment of Court Commissioner to measure the suit land. By an order dated 25^th February, 2015, on the said application (Exhibit 70), the learned Civil Judge appointed Deputy Superintendent Land Record (TILR), Vaduj, as a Court Commissioner to carry out measurement of revision

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survey Block No.259 on the basis of sub-division measurement (phalni patrak) of the year 1955 as well as on the basis of multiple book (gunakar pustak) and CDE Sheet (kde patrak) separately and show the encroachment, if any, alongwith record and map. Pursuant to the aforesaid direction the TILR carried out the measurement of the subject property and submitted a report.

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Eventually, the Cadestal Surveyor was examined as plaintiffs witness. The said witness deposed that he had carried out the measurement on the basis of sub-division measurement (phalni patrak) and multiple book (gunakar pustak). He did not measure the land in accordance with the CDE Sheet (kde patrak).

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The petitioners preferred the instant application asserting that re-measurement of the suit land was warranted as the TILR had not carried out the measurement in accordance with the directions of the Court vide order dated 25^th February, 2015.

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By the impugned order, the learned Judge was persuaded to reject the same holding, inter alia, that the plaintiffs had been repetitively filing applications for re-measurement as the measurement carried out and the report submitted by the Cadestal Surveyor, did not reveal any encroachment. After the

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report was filed, the plaintiffs had filed an application for remeasurement (Exhibit-79) which came to be rejected, yet, to prolong the matter the plaintiffs filed the instant application.

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Mr. Rananaware, the learned Counsel for the petitioner, submitted that since the first measurement was not carried out in accordance with the directions of the Court in the order dated 25^th February, 2015, the plaintiffs were constrained to make the application for re-measurement. Therefore, the trial court could not have rejected the application on the premise that the petitioners were filing applications to prolong the disposal of the suit.

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I am not persuaded to agree with the submissions of Mr. Rananaware. The trial court has referred to the sequence of the events. The petitioners filed an application (Exhibit-79) seeking directions to re-measure the land. After the said application was rejected by the trial court, the petitioners examined the Cadestal Surveyor. Thereafter, the instant application came to be filed seeking re-measurement. On first principles, when the first application for re-measurement (Exhibit-79) was rejected, the plaintiffs could not have again filed application seeking the same prayer. Secondly, the petitioners have not conveniently annexed a copy of the order on the said application (Exhibit-79),

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whereby the prayer of the plaintiffs to re-measure the land was rejected to the instant petition though that is one of the prime reason for which the instant application came to be rejected. Thirdly, the endeavour of the plaintiffs appear to seek the measurement of the land repetitively till a report is filed which suits the case of the plaintiffs. The learned Civil Judge has correctly appreciated the design with which the instant application was filed and rightly rejected the same with costs.

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No interference is, thus, warranted in exercise of the supervisory jurisdiction.

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Petition thus stands dismissed.

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[ N. J. JAMADAR, J. ]

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Atmaram Laxman Khade and Ors. v. Chanda Dashrath Doiphode and Ors.

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Atmaram Laxman Khade and Ors. v. Chanda Dashrath Doiphode and Ors.

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