Gujarat High Court
Patel Bachubhai Lakhmanbhai vs Manilal Fulchand Parmar on 20 February, 2013
Author: C.L. Soni
Bench: C.L. Soni
PATEL BACHUBHAI LAKHMANBHAIV/SMANILAL FULCHAND PARMAR DECEASED THROUGH HIS HEIRS C/SA/40/1991 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 40 of 1991 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI Sd/- ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ PATEL BACHUBHAI LAKHMANBHAI & 2 Versus MANILAL FULCHAND PARMAR DECEASED THROUGH HIS HEIRS & 16 ================================================================ Appearance: MR DM THAKKAR, ADVOCATE for the Appellants MR DJ BHATT, ADVOCATE for the Respondent(s) No. 1.1 - 1.4 , 1.7 , 2.1 - 2.4 , 3 - 6 ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 20/02/2013 ORAL JUDGMENT
1. This appeal is at the instance of the original plaintiffs who filed Regular Civil Suit No.146 of 1979 against respondent- Manilal Fulchand Parmar (original plaintiff) who since died pending the appeal, his heirs are brought on record. Suit is for mandatory injunction and for permanent injunction.
2. Case of the plaintiffs is that they are owners and in possession of the land bearing Survey No.776 and land bearing No.809 is on eastern side and adjacent to the land of the plaintiffs and is of the ownership of the defendant. Said land of the defendant is non-agricultural open land (Vada land). It is further case of the plaintiffs that the defendant had started making construction on the said vada land and constructed one wall on its western side touching the land of the plaintiffs. It is further averred by the plaintiffs that the defendant without leaving any margin from the land of the plaintiffs started construction of wall on 30.5.1979 and placed one window of 5x4 ft in the said wall on the side of the land of the plaintiffs though the defendant had no right of easement on the land of the plaintiffs. It is further averred in the plaint that the defendant since having open vada land, has no right of light or air through any window or ventilation or any right of discharge of water on the land of the plaintiffs and has no right or authority to cause damage to the land of the plaintiffs. The defendant though requested not to do any illegal act of making construction of wall touching the land of the plaintiffs but since did not stop doing such illegal act, suit is filed. In the suit, the plaintiffs have prayed that since the defendant has no right or authority to place any window, door, ventilation, etc. in the wall on the western side of his vada land, the window of 5x4 ft placed in wall be ordered to be closed by mandatory injunction. Plaintiffs have also prayed to grant permanent injunction restraining the defendant from placing window, door, ventilation, etc. in the wall on the western side of his land touching the land of the plaintiffs and from discharging rainy water or any other water through gutter or any other mode on the land of the plaintiffs.
3. Suit was resisted by the defendant by filing written statement at Exh.18 taking various contentions.
4. It appears that the parties arrived at consensus to get their respective lands measured through Court Commissioner and further agreed that if it is found by Commissioner s report that the defendant constructed wall touching the land of the plaintiffs without leaving margin of 3 ft, the defendant shall close window permanently and shall not place any window in future in such wall and if it is found from the Commissioner s report that the defendant constructed wall leaving 3 ft land from the land of the plaintiffs then windows placed by the defendant in the wall shall remain open forever.
5. On the above such consensus, parties presented consent terms at Exh.58.
6. By the said consent terms, parties requested to pass decree as per report of the Commissioner.
7. Learned Trial Judge on the basis of the above consent terms at Exh.58 passed order appointing Survey Superintendent of Bhavnagar as Court Commissioner at the cost of the defendant. Court Commissioner was directed to measure the land of the defendant at Survey No.809 and after placing boundary marks as per the measurement, to make report before the Court to point out as to whether construction of wall made by the defendant on Survey No.809 towards land of the plaintiffs was touching the land of the plaintiffs or after leaving 3 ft margin from the land of the plaintiffs. The Commissioner was directed to make report with map on the basis of the measurement by 31.12.1983.
8. It appears from the record that on 19.10.1984, Superintendent of Land Records, Bhavnagar, who was appointed as Court Commissioner, took measurement of land of the plaintiffs and land of the defendant on the basis of their possession and recorded statement of plaintiff No.1 and defendant to confirm that measurement was taken by the Superintendent of their lands as per their possession and in confirmation thereof, the parties have signed below the same. Said recording of statement of the parties by the Court Commissioner- Superintendent of Land Records is found at Exh.80. Below the said statement, it is found recorded that one of the parties demanded measurement of the land of Survey No.809, from the eastern side where river is stated to be situated. It appears that thereafter, the Court Commissioner addressed a letter to learned Civil Judge, District Balasinor at Exh.79 with map showing measurement of lands of the parties with above referred statement made by the respective parties dated 19.10.1984, which is referred as Rojkam by the Superintendent. This letter of Superintendent is stated to be report of the Court Commissioner. In the said letter, it is stated that measurement of the lands of the parties was made after taking points of possession of their lands and on that basis, map was prepared. Learned Judge then accepted the said report and directed to pay remuneration to the Commissioner of Rs.350/-. It further appears that the defendant lodged his objections on 8.2.1985 against the report and one of the main objections was that measurement of the lands of the parties was not done as per the Government record (Tippan), but the same was done on the basis of possession of the lands of the parties. It is stated in the said objections that since the Superintendent stated that possession of the lands by the parties was matching the Tippan of the lands of the parties, no objection was taken by the defendant before the Commissioner.
9. Learned Trial Judge then decided the objection and allowed the suit as per the consent pursis at Exh.58 and ordered the defendant to close window placed by him in the wall constructed on the western side of his land and restrained the defendant permanently from placing any window in future in the said wall.
10. Defendant challenged the said judgment and decree by filing Regular Civil Appeal No.98 of 1985. Learned Appellate Judge came to conclusion that the Court Commissioner took measurement as per the points shown by the plaintiffs showing respective possession of the parties. Learned Appellate Judge further recorded that the Court Commissioner was appointed to act according to law and to prepare map by taking original boundaries of the lands and to show in his report or map as to whether there was any encroachment made by the defendant or not. Learned Appellate Judge further recorded that Court Commissioner has not made clear report of the measurement and has exceeded his power to decide whether the defendant has left 3 ft of land or not. Learned Appellate Judge further came to the conclusion that report of the Court Commissioner could not be taken to be final but it was for the Court to decide on production of report of the Court Commissioner and consent terms at Exh.58 could not be taken as consent decree by the Court. Therefore, appeal would lie under Section 96(3) of the Code of Civil Procedure. Learned Judge thus allowed the appeal and set aside the judgment and order passed below Exh.58 and remanded the matter back to learned Trial Court for disposal in accordance with law after issuing fresh commission, if so needed, and after receipt of the report from the Commissioner and after hearing objections of the parties and allowing the parties to adduce their evidence against the report to decide the suit according to law. Hence, this appeal by the original plaintiffs.
11. This appeal was admitted by order dated 26.3.1991 on the following substantial questions of law:-
Can the lower appellate Court misread the endorsement of one party below the Commissioner s report to that of the other party ?
(2) What would be the nature of the function of a person named in the consent purshis whose decision on the dispute is agreed to be binding between the parties ?
(3) Can a party to such consent purshis be permitted to resile there upon on a ground not germane thereto ?
12. I have heard learned advocates for the parties.
13. Learned advocate Mr. D.M. Thakkar appearing for the appellants- original plaintiffs submitted that appeal before the first Appellate Court was not maintainable against the consent decree passed by the Trial Court. Mr. Thakkar submitted that parties had clearly agreed in the consent terms at Exh.58 to abide by the Court Commissioner s report and on that basis, decree was to be passed and since learned Trial Judge passed decree on the basis of the consent terms, after accepting the report of the Commissioner, no appeal against such consent decree passed by the learned Trial Judge was maintainable before the first Appellate Court under Section 96 of the Code of Civil Procedure. Mr. Thakkar submitted that once the defendant having agreed to abide by the Commissioner s report and to accept the measurement as true and correct by signing the statement before the Court Commissioner, who was Superintendent of Land records, it was not open to the defendant to raise objections against report of the Court Commissioner. Mr. Thakkar submitted that Court Commissioner had not committed any error in taking measurement of the lands of the parties and Court Commissioner being officer from the Land Records Department, was expert person to take measurement and to report about the extent of possession of the respective parties and also about the construction put up by the defendant. He, therefore, submitted that Trial Court had not committed any error in accepting the report of the Court Commissioner and in passing the consent decree especially when the defendant was heard before acceptance of the report of the Court Commissioner. Mr. Thakkar thus submitted that Court Commissioner having clearly found that the defendant had constructed wall by not leaving 3 ft margin from the land of the plaintiffs, the defendant was bound to act as per the consent terms and it was not open to the defendant to raise any objection against the consent decree passed by learned Trial Judge based on the consent terms and report of the Court Commissioner. Mr. Thakkar submitted that lower Appellate Court has seriously erred in construing the document at Exh.80,being Rojkam, recording statement of the parties about correctness of the measurement taken by the Court Commissioner and also committed serious error in holding that the Court Commissioner did not act according to law while taking measurement of the lands of the parties. Mr. Thakkar submitted that by such conclusion reached by the learned Appellate Judge, learned Appellate Judge has in fact permitted the defendant to resile from the consent pursis which was not permissible once having invited order on the consent terms. He thus urged to allow this appeal on the substantial questions of law formulated by this Court while admitting the appeal.
14. As against the above arguments, learned advocate Mr. Bhatt appearing for the respondent- defendant submitted that simply because the defendant had agreed to have measurement by the Court Commissioner, that would never mean that the defendant had even agreed for taking measurement of his land as per the possession of their respective lands. Mr. Bhatt submitted that once Superintendent of Land Records was appointed to act as Court Commissioner, it was duty of the Court Commissioner to act according to law and not to act as per wish of the parties. He pointed out that though the Court Commissioner was required to take measurement on the basis of the Government record, which is called as Tippan Court Commissioner measured the land as per the possession of the parties pointed out by one of the plaintiffs. Mr. Bhatt submitted that defendant had never stated before the Superintendent, who was acting as Court Commissioner, that measurement taken by the Court Commissioner was correct. He stated that measurement as per the possession of the lands was correct. Mr. Bhatt pointed out that if measurement was to be carried out on the basis of the map or Government record available with the land Record office and if Court Commissioner had taken measurement contrary to such Government record and taken measurement on the basis of permission of the parties, such could never be said to be measurement taken of the lands in the eye of law. He submitted that Court Commissioner had taken measurement as instructed by one of the plaintiffs and therefore, in no circumstances, measurement taken by the Court Commissioner could be said to be measurement of the lands of the parties according to law. Mr. Bhatt further submitted that what was agreed between the parties by way of consent terms at Exh.58 was of appointment of Court Commissioner and then to act as per the report of the Court Commissioner. He submitted that report of the Court Commissioner lawfully made was to be acted upon and could not be construed to be final decree so as to bind the parties. He submitted that the Court below was to further act and pass necessary order on the basis of the report of the Court Commissioner. Therefore, if report of the Court Commissioner was contested and challenged by one of the parties, ultimate decision rendered by the Court after deciding objections of the parties could never be said to be decision by compromise and consequential consent decree. He thus submitted that decision of the learned Trial Judge since was not consent decree, first appeal was certainly maintainable under Section 96 of the Code of Civil Procedure. Mr. Bhatt submitted that Appellate Court has recorded finding of fact on the basis of documentary evidence available on record that Court Commissioner has not acted and not taken measurement as required under the law. On such finding of fact if the matter is remanded for taking fresh measurement by the Commissioner, this Court while exercising the powers under Section 100 of the Code of Civil Procedure may not interfere in such order passed by the first Appellate Court. Mr. Bhatt submitted that Second Appeal against order of remand is not maintainable and therefore, this Court may dismiss the appeal on the ground that such appeal is not maintainable.
14.1. Against order of remand, this second appeal is not maintainable but Appeal from Order is maintainable. Under Order 43 of the Code of Civil Procedure, Appeal from Order is required to be heard on the like questions of law on which second appeal could be heard. However, since the second appeal is of the year 1991 and has remained pending for these many years, this Court thought it fit to hear and decide the appeal on its own merits.
15. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below with record of the case, it appears that parties had agreed to submit consent pursis at Exh.58. As per the said pursis, parties agreed to have Court Commissioner appointed for the purpose of taking measurement of their lands. As per the consent pursis, if the report of the Commissioner reveals that defendant has constructed wall touching the boundary of the land of the plaintiffs, the defendant shall close window placed in his wall and shall not place any window in future and if report reveals that such wall is constructed leaving 3 ft margin from the land of the plaintiffs then defendant will be at liberty to have such window open forever. It further appears that after the Commissioner measured the land on the basis of the possession of the parties, the defendant raised serious objection as regards method adopted by the Commissioner for the measurement of the lands. Grievance of the defendant was that Court Commissioner was required to independently act and he was not expected to take measurement of the lands on the basis of possession of the respective parties because such taking of measurement of the land would not reflect actual position of the land of the parties and actual situation of the wall constructed by the defendant. Learned Trial Judge, however, on hearing the parties found that since parties agreed to act as per Commissioner s report and since from Commissioner s report, it is found that wall constructed by the defendant is touching the land of the plaintiffs, there is no reason not to allow the suit as per the consent terms between the parties. On such basis, ultimately the suit of the plaintiffs was allowed.
16. It appears that learned Trial Judge has not gone into the aspect as to whether the Commissioner was justified in measuring the lands on the basis of possession of the parties. It is required to be noted that when the Trial Court appointed Court Commissioner, it was not left open to the Court Commissioner to take measurement of the land on the basis of the possession of the parties. Court Commissioner was, therefore, required to act according to law for taking measurement of the lands of the parties and not as per the convenience and suitability of the parties. Even if one of the parties or both parties agreed to take measurement on the basis of their possession of the lands, the Court Commissioner was expected to take measurement of the lands as per the map available in the office of Land Records (as per Tippan) so as to place before the Court the correct position and situation of the lands and to show correct situation of the wall constructed by the defendant. There is no dispute about the fact that Superintendent of Land Records has not measured the land as per the Government record. What is stated in Exh.80 is that measurement is taken on the basis of the possession of the parties and such measurement was stated to be correct by the parties. However, what is found from the measurement-sheet (map) submitted by the Court Commissioner that measurement of the land of the defendant is done by taking final boundaries as per the possession of the land of the plaintiffs in presence of the plaintiffs. From this map, it appears that measurement of the land of the defendant was not actually taken but possession of the land of the plaintiffs was stated to be matching with boundaries of the land of the defendant as per Tippan. Therefore, what clearly appears is that the measurement of the land of the defendant was not at all done but it was ascertained by taking measurement of the land of the plaintiffs that too in presence of the plaintiffs only. What appears from the map is that Superintendent of Land Records has not taken clear measurement of both the lands according to Tippan of the said lands.
17. Learned Appellate Judge has on consideration of the above documents recorded that the measurement of the lands was taken by the Court Commissioner as pointed out by the plaintiffs and it could not be said to be independent measurement by Court Commissioner who was bound to act according to law.
18. This being the finding of fact supported by the documents on record, it cannot be said that the lower Appellate Court has misread the endorsement of one of the parties on Court Commissioner s report. Court Commissioner was not final authority and if report of the Commissioner was objected by one of the parties, issue became contested one and once contested issue in relation to the Commissioner s report was decided by the Trial Court, ultimate decree passed by the Trial Court accepting the consent terms could not be said to be consent decree at all. Appeal before the Appellate Court was, therefore, very much maintainable. If Court Commissioner has not acted according to law, the defendant had all rights to object to the procedure adopted by the Court Commissioner and to the ultimate report of the Commissioner and in such circumstances, the defendant cannot be said to have resile from the consent pursis. Consent terms were to be acted upon as per the report of the Commissioner. But, consent terms could only be acted upon if the report of the Court Commissioner is according to law. Consent terms between the same parties still remain. Only thing which was and which is required to be done is to have measurement of the lands according to law through Court Commissioner.
19. In above view of the matter, learned Appellate Judge has not committed any error in remanding the matter to the learned Trial Judge to issue fresh commission for the purpose of finding out as to whether defendant has constructed wall touching the land of the plaintiffs or not. This appeal is therefore, required to be dismissed.
20. Now, since Trial Court is required to issue fresh commission, it would be in the interest of justice to direct the Trial Court to appoint Court Commissioner afresh who shall be an officer from the office of the District Land Records and who shall measure the lands of the parties bearing Survey No.776 and 809 with the help of the Government record (Tippan) in presence of the parties. Court Commissioner shall after measuring the land prepare panchnama as also measurement-sheet clearly showing as to whether defendant has left 3 ft margin from the land of the plaintiffs or not. Learned Trial Judge is directed to see that Court Commissioner is appointed within a period of three weeks from the date of receipt of this judgment and Court Commissioner be asked to submit his report within a period of three months from the date of his appointment. The parties shall be bound by the consent terms on report of the Court Commissioner. Learned advocate Mr. Bhatt for the defendant has fairly stated before the Court that the defendant shall bear expenses of Court Commissioner, as may be fixed by the Court below. The defendant shall deposit such amount before Trial Court within two weeks after the same is fixed by the Trial Court. On receipt of the Commissioner s report, the Trial Court shall dispose of the suit on the basis of the report of Court Commissioner by considering consent terms at Exh.58.
In the result, the appeal is dismissed. The judgment and decree passed by first Appellate Court is confirmed.
22. Record and Proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(C.L. SONI, J.) omkar Page 13 of 13