Bombay High Court
Omprakash S/O Gulabchand Bajoria vs Ramesh Ramnivas Soni And Sheikh Malang ... on 20 August, 2003
Author: S.T. Kharche
Bench: S.T. Kharche
JUDGMENT S.T. Kharche, J.
1. This appeal arises out of the judgment and decree passed by the learned District Judge on 28.3.1988 in Reg. Civil Appeal No.18 of 1986 reversing the judgment and decree passed by the trial Court on 24.1.1986 in Reg. Civil Suit No.50 of 1982. The trial Court granted decree in favour of the plaintiff and directed defendant no.2 to deliver the vacant possession of the suit site to the plaintiff by removing the structure thereupon with a further direction that defendant no.1 shall pay damages at the rate of Rs. 72/- for the period from 24.3.1982 to 16.4.1982 at the rate of Rs.3/- day for the illegal use and occupation of the suit site and also directing defendant no.2 to pay damages at the rate of Rs.3/- per day from 1.7.1984 till the date of the order. The trial Court had also directed an enquiry into future mesne profits. The defendants carried an appeal to the District Court and the appellate Court set aside judgment and decree passed by the trial Court by allowing the appeal and dismissed the suit.
2.The plaintiff/appellant is the owner of plot no.224, sheet No.9-B situated at Pandharkawada. A temporary shed was constructed on this plot which is adjoining to the nazul land abutting the road on the eastern side. The plaintiff was under apprehension that the defendants have made encroachment on his land and, therefore, he moved the Nazul Surveyor for the purpose of measurement of his plot. The first measurement was carried out by the nazul Surveyor on 17.7.1980. It is contended that no specific area of encroachment was mentioned in the map and, therefore, the second measurement was carried on 12.11.1981 by the Nazul Surveyor, who prepared the map (Ex.42) wherein he had shown some encroachment. Thereafter, the third measurement was carried out on 05.6.1985 by the nazul Surveyor who prepared the map (Ex.43) and it was revealed that defendant no.1 had made encroachment to the extent of 10 x 7 feet. The plaintiff served a notice dated 11.3.1982 on the defendants calling upon them to deliver the possession of the area under encroachment to which no reply was given and ultimately the suit was filed on 17.4.1982 claiming possession and mesne profits.
3.The defendant no.1 admitted that the plaintiff is the owner of plot No.224. The defendant no.1 combated the claim of the plaintiff and contended that he sold the temporary structure which was standing on the nazul land to the East of plot No.224 to defendant no.2 and, as such, he is not responsible for any encroachment which is said to have been made on the land of the plaintiff. The defendant no.2 also adopted the defence put forth by defendant no.1.
4.The trial Court on appreciation of evidence granted decree in favour of the plaintiff and recorded findings that the plaintiff has proved that both the defendants had made encroachment upon his land and negatived the contention of the defendants that Pandurang Devghare is a statutory tenant on the disputed site and that defendants no.1 and 2 are the licensees of the said Pandurang Devghare.
5.The appellate court on reappreciation of the material brought on record was of the view that whatever measurements were carried out by the Nazul Surveyor cannot be said to be accurate in any manner and it would be futile to examine the Commissioner, if appointed under Order 26 Rule 9 of the Code of Civil Procedure. The appellate Court recorded a finding that the plaintiff has failed to establish that the defendants have made any encroachment on the laters land muchless to the extent of 10 x 7 feet on the north-east portion. Consistent with these findings, the appellate Court set aside the judgment and decree passed by the trial Court.
6.The defendant no.2 died during the pendency of this appeal and his legal representatives are brought on record.
7.None present for the respondents/defendants and the legal heirs of defendant no.2 though duly served.
8.The learned counsel for the plaintiff/appellant contended that the substantial question of law involved in this appeal is, whether the map prepared for the purpose of the cause can be relied on in view of the provisions of Section 83 of the Indian Evidence Act, 1872 and whether presumption of law and fact could be drawn that the map prepared by the Nazul Surveyor was accurate?
9.The learned counsel for the plaintiff contended that the appellate court had rejected two applications, the first one Ex.16 was filed on 9.11.1987 under Order 41 Rule 27 of the Code of Civil Procedure for granting permission for production of the documents on record as the size of the plot No.224 owned by the plaintiff was not disclosed in the record of the suit. He contended that the second application Ex.21 was also filed on 21.2.1988 under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment in the pleadings. He pointed out that the appellate court did not pass any order on both these applications. He contended that if the orders would have been passed, the matter would have been remanded to the trial Court for fresh decision according to law under Order 41 Rule 23 of the Code of Civil Procedure on that particular issue. He contended that the appellate Court made undue haste in deciding the matter without passing appropriate orders on the aforesaid applications and unnecessarily observed that the plaintiff can bring fresh suit driving the parties to multiplicity of the proceedings. Hence, according to Mr.Agnihotri holding for Mr.Aney, learned counsel, contended that the impugned judgment and decree passed by the appellate court has resulted into miscarriage of justice and this is a fit case which deserves to be remanded to the appellate Court after giving parties an opportunity to lead evidence in relation to the encroachment by invoking the jurisdiction of this Court under Order 42 Rule 1 of the Code of Civil Procedure.
10.I have considered the contentions canvassed by Mr.Agnihotri, learned counsel, for the appellant. It is not disputed that the plaintiff is the owner of plot No.224 situated at Pandharkawada. It is also not disputed that around the said plot there is a nazul land. The appellate Court found that the said plot was received by the plaintiff in partition, but the partition-deed was not produced on record to show what was the size of the plot that was allotted to the share of the plaintiff and consequently it is not known as to what was the exact area and size of the plot. The appellate Court also observed that the Nazul Surveyor had carried out three measurements but he has not mentioned the length and breadth in the two measurement maps drawn by him on 12.11.1981 and 5.6.1985. There is no dispute that both the measurement maps were prepared for the purpose of the cause on the application of the plaintiff and, therefore, the appellate Court was of the view that the measurements cannot be said to be accurate in any manner.
11.The appellate Court observed in para 9 of its judgment in the following words :
"Now in this case Nazul Surveyor was examined and even if Commissioner is examined without the documents of title and Tippan Utara no positive result would be achieved. It was for the plaintiff to secure title-deed in respect of his plot and the record of Nazul plot regarding area adjoining plot No.224. These records were not with the Nazul surveyor though he took measurement on three occasions. It is a case of encroachment and if subsequently other documents are secured regarding title and Nazul record plaintiff can bring fresh suit. I do not find any substance at this stage to reopen the case by appointing a Commissioner without any document and giving opportunity to the plaintiff to fill in the lacuna. On careful consideration of the matter I find that it is not possible for this Court to agree with the findings of the learned trial Court that the encroachment has been proved by the plaintiff. Such surmises and conjectures and inferences are not proper to be drawn in the matter of this type."
12.At this juncture, it is necessary to reproduce Section 83 of the Evidence Act which lays down that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. were so made and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate.
13.The analysis of the aforesaid section would show that the words employed, "but maps or plans made for the purpose of any cause must be proved to be accurate" would clearly indicate that the maps or plans made for the purpose of any cause must be proved to be accurate and no presumption of law can be drawn that those maps or plans are accurate which are prepared at the instance of the parties for the purpose of the cause. The onus of proving that such a map is accurate lies on the party who produced it. The maps must be proved by the person who has prepared them. They are post litem motesa and lack necessary trustworthiness. Where the maps are made for the purpose of a suit there is, even apart from fraud which may exist, a tendency to colour, exaggerate and favour which can only be counteracted by swearing the maker to the truth of his plan. Hence, there is no presumption of accuracy in respect of the map or plan which is made for a particular cause and it goes without saying that a map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. In any case, in which there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and/or subsequent reference in the pleadings or judgment to place the mark on a map should be referred to this map which must be attached to the decree and signed by the Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case all over again. The map should be drawn with the North at the top and letters marking points should not be put in side ways or upside down.
14.I may usefully refer the decision of our High Court in Civil Revision No.406 of 1952 decided on 28.1.1953 by Justice B.K.Choudhari (as he then was) in Krishnarao v. Mahadeorao (1953 N.L.J. Note 230 at page 72) wherein it has been observed as under :
"3.The trial Court rejected the application stating that the question of encroachment by the defendant on a particular date is to be proved by positive evidence by the plaintiff and, therefore, it did not think it desirable to appoint a commissioner. It is against this order that the plaintiff has come up in revision.
4.Order 26, Rule 9, of the Civil Procedure Code is as follows : "In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court."
5.Under the above rule, the Court has a discretion to order local investigation or not. The object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. Cases of boundary disputes and disputes about the identity of lands are instances when a Court should order a local investigation under this rule. [Po Gyi v. Maung Paw & anr. (2 I.C.347)}."
6. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the exact area encroached upon. Oral evidence cannot conclusively prove such an issue. The order of the lower Court refusing to appoint a commissioner amounted to a refusal to exercise jurisdiction. It is set aside. The plaintiffs application under Order 26, Rule 9, of the Civil Procedure Code, for appointment of Commissioner is allowed."
15. I am in respectful agreement with the view taken by this Court in the aforementioned case. It is clear that under Order 26 Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation or not. The object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. The cases of boundary dispute and disputes about the identity of lands are instances, when a Court should order a local investigation under Order 26 Rule 9 of the Code of Civil Procedure. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue.
16.However, reference may also be had to the decision of the Supreme Court in the case of Ram Kishore Sen & ors. vs. Union of India - wherein it has been held in para 12 that, "it is true that Section 83 of the Evidence Act provides that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. were so made and are accurate, but the maps or plans made for the purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of the maps which satisfy the requirements prescribed by the first part of Section 83. Exh.A-1 obviously does not fall under the category of the said map and so there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr.Mukherjee has given us no satisfactory reasons for differing from the said conclusion."
17.I may also usefully refer the decision of Apex Court in E. Achuthan Nair v. P.Narayanan Nair & anr. - wherein it was held, "In India, the question whether a suit is cognizable by a civil court is to be decided with reference to Section 9 of the Civil Procedure Code. If the suit is of a civil nature, the court will have jurisdiction to try the suit unless it is either expressly or impliedly barred. A dispute regarding identification of boundary between two adjacent land owners is certainly a dispute of a civil nature and it is not barred either expressly or impliedly. The Courts in India will not be justified in importing the technicalities of English law and the distinction made by the English courts between legal estates and equitable estates. The report submitted by the Commissioner appointed by the trial court to locate the boundary in the manner indicated in the agreement between the parties was rightly accepted by the High Court. The decree passed by the High Court in terms of the prayer made by the plaintiff-respondent has to be confirmed." The Court further observed that "disputes as regard the location of boundary separating adjacent lands of different owners may arise under so many circumstances. One common instance is where portions of survey field are transferred or allotted to different persons without mentioning either the side measurements or other necessary measurements to fix the geometrical shape of the plot at the spot. The area and location alone may have been shown in the transfer deed or the partition deed. Without changing the location, the area conveyed or allotted may be sought to be located in one or more alternative geometrical shape by one owner. Again, any one party may wish to have the limits of the area belonging to him demarcated so that he may either enclose the area to prevent trespass or to exercise acts of possession without encroaching into the neighbouring plot. If the other party on demand does not cooperate, a cause of action arises to have the limits of his property determined through court. Again the property conveyed or allotted may have been described only with reference to neighbouring properties. Those properties may or may not have been limited in extent and shape to a survey field. In that case, a fixation of the boundary of those properties may be necessary to fix the boundaries of the properties conveyed or allotted. If there is no cooperation in doing that, that may result in a dispute. These instances are only illustrative and not exhaustive. All these disputes are disputes of a civil nature and they can form the subject matter of a suit under Section 9 CPC. There is no express or implied bar under any other law. According to me, whenever there is a dispute between two parties as regards the location of a boundary separating their neighbouring properties and if on a demand to cooperate in fixing that boundary it is not given, a suit will lie at the instance of the demanding party. So I agree with my learned brother that the decision in Rayappan v. Yagappan - 1958 Ker LT 955 is not correct and has to be overruled."
18.It is necessary to reproduce Rules 9 and 10 of Order 26 of the Code of Civil Procedure which read as under :
"9. Commissions to make local investigations - In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
10. Procedure of Commissioner .- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit.- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which has made the investigation. (3) Commissioner may be examined in person - Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."
19.Bare reading of the aforesaid provision of law would reveal that the Commissioner can be appointed under Order 26 Rule 9 C.P.C. and the Commissioner has not only to take the joint measurements but to prepare a report and submit it to the Court which can be read in evidence as per sub-clause (2) of the Rule 10 of Order 26 C.P.C.
20.In view of this legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and the defendant for the purpose of local investigation under Order 26 Rule 9 of the Code of Civil Procedure not only becomes relevant but appears to be absolutely essential for the just decision of the case.
21.In the present case, such exercise has not been done inspite of the applications filed by the appellant before the appellate court on which no orders have been passed. Therefore, the map drawn by the Nazul Surveyor at two times cannot be said to be accurate map. The first application (Ex.16) has been filed under Order 41 Rule 27 and permission was sought for production of the extract of the property card. The second application (Ex.21) was filed for amendment. On both these applications no orders have been passed by the appellate Court which has resulted into miscarriage of justice. If the Commissioner would have been appointed under Order 26 Rule 9 CPC for taking the joint measurement, the map and the report by the Commissioner, i.e. either Cadastral or City Surveyor, would have been of a great assistance to the Court to come to the right decision as to whether the encroachment has been caused by the defendants on the land of the plaintiff.
22.It was absolutely necessary for the appellate court to pass appropriate orders on the applications Exs.16 and 21 filed before it, the result of which would have been appointment of Commissioner under Order 26 Rule 9. In view of this situation, I am of the considered view that the appellate court has committed an error of law by observing that if subsequently other documents are secured regarding title and Nazul record, plaintiff can bring fresh suit and there was no substance at that stage to reopen the case by appointing a Commissioner without any document and giving opportunity to the plaintiff to fill in the lacuna. There was no question of filling in the lacuna and in the interest of justice it is absolutely necessary to appoint a Commissioner specially when the defendants do not own any property adjoining plot No.224 owned by the plaintiff and it is an admitted position that plot No.224 is surrounded by nazul land. Therefore, the findings of the appellate Court cannot be sustained in law and I am of the opinion that the matter deserves to be remanded to the appellate Court for fresh decision according to law. The appellate Court shall appoint the Commissioner as per Order 26 Rule 9 of C.P.C., at the costs of the plaintiff, in view of the observations mentioned above in this judgment, and shall give opportunity to both the sides to adduce evidence upon the issue of encroachment. The Commissioner, i.e. Cadastral/City Surveyor from the office of Taluka Inspector of Land Records (T.I.L.R.) or District Inspector of Land Records (D.I.L.R.) shall carry out the joint measurements in the sense that he shall take measurement of plot no.224 owned by the plaintiff as well as the nazul land and shall prepare the joint measurement map along with his report after taking into consideration the title deed of the plaintiff and shall also demarcate the boundary of plot no.224, note the actual measurements in the map itself by showing the size of precise and concise encroachment and then shall submit the report and the map to the Court of appeal.
23.The appellate Court shall also consider the two applications filed by the appellant favourably. The appellate Court shall decide the matter expeditiously and at any rate within three months from the date of receipt of the record and proceedings of this case.
24.The suit is remanded to the appellate Court for fresh decision according to law and in the light of the observations made above. Record and proceedings be sent back to the Appeal Court immediately, without any delay. The appellant is directed to appear before the lower appellate court within two weeks.
25.In the result, the appeal is allowed. The impugned order passed by the appellate Court is set aside. No costs.