ATMARAM ANANDA JAGRUT Vs. RAJARAM

JUDGEMENT

(1.) This appeal is against judgment and order dated 14.6.2013 passed by learned Adhoc District Judge 2, Buldana in Regular Civil Appeal No. 56 of 2010. Learned 1st appellate court after finding that the plaintiff was owner and entitled to possession of suit land, came to a conclusion that that appeal needed to be partly allowed so as to declare plaintiff as owner of the disputed land, entitled to possession and cultivation over it. In paragraph 47 of the impugned judgment and order, after 1st appellate court found that this is a boundary dispute between the parties, made reference to settled legal position in this regard and concluded that it is just and proper to get the suit land viz. survey number 1/1B and 1/A situated at village Hiwarkhed, Tahsil Mehkar, District Buldana. measured through Taluqa Inspector of Land Records (TILR) as court commissioner so that on determination of boundaries, boundary dispute between the parties shall be finally and conclusively settled.

(2.) It may be noted that in Regular Civil Suit No. 76 of 2006, decided by learned Civil Judge, JD, Mehkar, District Buldana, the trial Court found that plaintiff did not prove that he became owner of the suit land as a result of partition dated 25.3.1976 and came in possession of suit land. The trial Court also negatived the alleged encroachment made by the defendant on western side of the suit land to the extent of 52 R. Thus, the suit was dismissed as the plaintiff was unable to prove encroachment in respect of the suit land.

(3.) It appears that in appeal, 1st appellate court after considering the facts, found that the plaintiff is owner of the suit land and is entitled to peaceful possession and cultivation thereof. However, considering the boundary dispute involved, learned 1st appellate court made reference to the ruling in Kisanlal Maniklal Rathi v. Dinkar Yashwant Patil, 2004 1 MhLJ 138 as well as rulings in Ashatai Warekar v. Champatrao Kale, 2011 6 AIR(BR) 351 and Vijay Shende v. State of Maharashtra, 2009 5 MhLJ 279. In such cases, when there is a boundary dispute or dispute about identity about the suit property, this Court has time and again considered necessity to appoint TILR or DILR concerned as court commissioner and to take measurement of the disputed land so that factum of encroachment,if any, is brought to the notice of the court by properly drawn measurement map so as to conclusively and finally determine the real controversy between the parties. In such cases, the objection raised that Court Commissioner cannot be appointed for to collect evidence to investigate as to who is in possession of suit field/premises, was upheld in Nalubai Narayan Shinde v. Gopinath Dagdu Shinde, 2011 2 MhLJ 991in the light of different facts. It appears that the learned single Judge of this Court was considering the order passed by the Jt Civil Judge, JD, Ahmednagar regarding appointment of the court commissioner under Order XXVI, rule 9 of the Code of Civil Procedure in which the court commissioner was appointed to visit the spot in question to investigate factum of possession and to submit report in respect of possession of the suit property. In that context, learned single Judge of this Court held that no commissioner can be appointed to collect evidence of such nature. Learned single Judge of this Court was not dealing with the boundary dispute regarding boundaries of the property in a suit for removal of encroachment and consequential relief. The principle stated in the ruling was in relation to the order particularly impugned in that case cannot be extended to cases where the Court finds that an agreed map or plan between the parties to the suit is necessary so as to pass a meaningful and effective decree to end the real controversy between the parties finally and conclusively and also to facilitate execution of the decree in cases where parties disputed boundaries in respect of the property owned and possessed by the parties. The case in which an application is dishonestly made for appointment of a court commissioner with a view to collect evidence or to facilitate collection of evidence for one or either of the parties has to be distinguished from the case in which it is essential to have an agreed map on record of the case on the basis of which court can draw presumption under Section 83 of the Evidence Act. Such map or plan duly drawn by the competent authority measuring the land in question on behalf of the Central or the State Government, as the case may be, would carry presumption regarding accuracy of such map or plan and would aid in meaningful and prompt execution of the decree that may be passed in the suit relating to boundaries of the suit land or property. That being so, reference made by the 1st appellate Judge to apply the rulings referred to in paragraph 47 of the impugned judgment and conclusion recorded on that basis and to issue consequential direction to have measurement map or plan on record was fair, just and proper in view of the legal position stated by the 1st appellate court. As already observed such map or plan if brought on record would help the trial Court for effective and meaningful execution of the decree. Hence, since legal position is well settled, no substantial question of law would arise for determination in this second appeal. Moreover, this second appeal rightly objected on behalf of the respondent in view of Order 43, rule 1 (u) on the ground that when appellate court passes remand order, challenge to such order is permissible under Order 41, rule 23 CPC and appellant had remedy to file Appeal against Order and, therefore, second appeal under Section 100 CPC would not lie. Hence, this second appeal do not deserve admission in the absence of any substantial question of law.