KESHAV DATTATRAYA PATANKAR Vs. RANGA GOPALRAO KULKARNI

JUDGEMENT

(1.) EXCEPTION is taken in this petition under Article 226 of the Constitution to the judgment delivered by the 3rd respondent, hereinafter referred to as "the Appellant Court" in a boundary dispute.

(2.) PETITIONERS and the 1st respondent are members of a Co-operative Housing Society, which is respondent No. 2 to this petition. The Society entered into agreements transferring plots of land to the members-petitioners having purchased what is known as plot No. 20 and the 1st respondent, plot No. 21. These transactions took place in the year 1952 and 1964 respectively. In the year 1974 the 2nd respondent appointed a firm of Architects, viz M/s. D. V. Joshi and Co. , to carry out a survey of the plots of the members. The said Architects submitted a report along with a sketch plan showing the different plot numbers, existing area and the entitlement in relation to the area according to the agreements entered into with the plot holders. From this it appeared that owners of plots Nos. 19 and 21 were both in occupation of area in excess of their entitlements. As against this, the owners of plot No. 20 were in occupation of an area less than their entitlements. Petitioners being the owners of plot No. 20 initiated a dispute in the Co-operative Court against respondents Nos. 1 and 2. Shortly stated, their claim was that respondent No. 1 had encroached upon an area forming part of plot No. 20 and should be made to disgorge the illegal usurpation. The claim was opposed by respondent No. 1. During the course of the proceedings before the Co-operative Court, a Judge of the said Court on 17th May 1979 passed an order reading thus:---

(3.) COUNSEL for the parties have been heard. I must express my amazement at the order passed by the appeal Court. It seems to be of the view that the report of the consolidation Officer was not evidence and that it had not been proved. This is a surprising comment seeing that the Consolidation Officer was actually examined and cross-examined before the Co-operative Court, and apart from this, the Consolidation Officer was in the nature of a Commissioner. A Commissioner can be appointed under Order XXVI, Rule 10 of the Civil Procedure Code, 1908, for making local inspections. Sub-rule (2) of this provision lays down that the report of the Commissioner and the evidence taken by him shall be evidence in the suit (dispute) and shall form part of the record. Wherever required, the Court may grant permission to any of the parties to examine the Commissioner personally in open Court. That was done and it was upon a direction given in an earlier revision by the Appeal Court, which was responsible for the Commissioner being compelled to appear for a viva voce examination in Court. In terms, the Consolidation Officer spoke of the report drawn up by him as being the result of a site inspection made by him. The data taken into consideration by him was also referred to and that was on the basis of the record available with the office of the Director of Land Records. The Cross-examination of the witness was half-hearted and established nothing much. To demolish the effect created by the testimony of Naik, reliance was placed upon the last sentence in his examination-in-chief which was to the effect that he had not demarcated the boundaries of plot Nos. 20 and 21. Having regard to what the witness had stated earlier, what the last sentence implied was that he had not fixed the boundary marks of the two plots. This could not render the report submitted by him wholly unreliable. It was argued that there was no reason to assume that respondent No. 1 was in occupation of land forming part of plot No. 20 assuming that the petitioner were in short possession of the area purchased by them. from the two reports on record, viz that submitted by the Societys Architects and Naik, the prima facie inference could be that the petitioners are not in occupation of the full area to which they are entitled under the agreement, entered into between them and the 2nd respondent. As against this, respondent No. 1 is in occupation of an area larger than that which he is entitled under the purchase agreement in his favour. To this extent there was room for an inference that the petitioners land had been encroached upon by the 1st respondent. Even if it be assumed that respondent No. 1 was not wholly to blame and that some part of the blame could be ascribed to the owner or occupant of plot No. 19, the conclusion was not that petitioners had failed to establish their case. The solution lay in a direction to the petitioners to implead the owner/occupant of plot No. 19 and not to throw out their claim in its entirety. At one stage it was argued that the area given in the agreement of plot holders was an approximation and that the plot holders had been long in possession before the petitioners raked up a dispute about an encroachment having been taken place upon the land belonging to them. There is no substance in this contention. Even if the dispute was belatedly raked up, as respondent No. 1 would describe it. I do not see how that justifies the appropriation of land not belonging to the 1st respondent by him. To turn to the issue, it is also who is in occupation of area which forms part of plot No. 20. Prima facie respondent No. 1 is one such person. It is also possible that the owner or occupant of plot No. 19 is also partly liable for making good the deficit of the petitioners. The interests of Justice requires that the orders passed by the Appellate Court and the trial Court both are quashed, and the dispute remanded back to the Judge of the Co-operative Court. The said Judge shall permit the petitioners/disputants to implead the owner/occupant of plot No. 19 as an additional opponent to the dispute. Thereafter, a Commissioner may be again appointed to survey plots Nos. 19, 20 and 21 to ascertain the extent of encroachment and the person responsible vis-a-vis the entitlement of the petitioners who own plot No. 20. Rule in these terms is made absolute with parties being left to bear their own costs. Parties to appear before the Co-operative Court on 27th March, 1991, so as to be told the purpose and next date of hearing. Rule made absolute.