RAJESHREE RAMESH BHOOSREDDY Vs. GYANDEVI GANGAPRASAD MISHRA

JUDGEMENT

(1.) Original plaintiff/decree holder has filed this petition aggrieved by the order dated 30/7/ 2002 passed by fifth Joint Civil Judge, junior Division, Nagpur in R. D. No. 587/ 1991. This Court issued notice to respondents on 4/8/2006 and as they did not appear, fresh notice indicating that matter will be disposed of finally at the admission stage itself was directed to be served by order dated 18/9/2006. Said notice is also served before 6/10/2006 but there is no appearance. The matter has been listed on 5 occasions thereafter and ultimately, Advocate P. V. Vaidya who represents petitioner has been heard finally by making the rule returnable forthwith.

(2.) Petitioner and respondents are neighbours. In fact, petitioner has purchased his house from respondents on 6/10/1978 for valuable consideration by registered sale deed. On the eastern side of this house, the respondents have retained a small house and open courtyard. Respondents obstructed petitioner from raising the compound wall on eastern boundary of her house and hence petitioner filed Civil Suit No. 1124/87 claiming permanent injunction against respondents restraining them or anybody on their behalf from committing acts like dumping and throwing of building material in Suit house, from making use of Suit house or any portion thereof for ingress and outgress or for carrying through it any building material, making any construction or erection causing any damage or interference to it, prohibiting them from causing any obstruction in construction of compound wall by her. She also sought relief of restraining them from dispossessing her from Suit house or any portion thereof and mandatory injunction directing them to remove building material etc. dumped on the site of Suit house. The Suit came to be decreed on 4/4/1988 in view of pursis filed by respondents admitting the claim of petitioner/plaintiff. Thereafter on 10/12/ 1991 petitioner filed execution proceedings against respondents for removal and demolition of construction and encroachment made by them on part of Suit house. She also moved express application for issuing of warrant against them for said purpose on very same day. Respondents filed reply on 28/2/1992 and denied any encroachment on Suit house or any illegal construction by them. They took a plea that entire construction done by them was within their own property and it was also over before filing of execution. The lower Court appointed trust engineer of Nagpur Improvement Trust as commissioner for local investigation and said Commissioner submitted his report after conducting spot inspection in presence of parties and their Advocates. Earlier he had submitted report which was objected to by respondents and hence Court below directed him to execute commission again in presence of both parties. Trust engineer accordingly carried site measurements with the help of his assistants and existing position of construction was marked on plan and signature of parties was obtained upon it. After taking measurements a fair plan came to be prepared and on the basis of all this, said engineer submitted his report pointing out encroachment made by respondents on Suit land and its extent. This report has been submitted on 11/9/1996. Respondents objected to said report and hence said Commissioner was examined before lower Court as witness. Respondents also examined one of them. Court below then heard parties and found that prayer for removal of construction could not have been granted as it was prohibitory decree. It also found that had petitioner approached when construction was in progress, decree could have been executed as provided under Order 21, rule 23 of CPC. On merits, it found that there was no order superseding the first report of Commissioner and hence his second report could not have been accepted. It has relied upon judgment of Kerala High Court in case of (Swami Premananda Bharati Vs. Swami yogananda Bharati) , reported at A. I. R. 1985 kerala 83. It also found that even second report of Commissioner was defective because commissioner no where specified in report as to how he calculated width of lane or distance between point "c" and point "d". It therefore dismissed the execution.

(3.) Advocate P. V. Vaidya has contended that when first report of Commissioner was objected to by respondents, lower Court directed Commissioner to inspect spot again in presence of parties and to submit another report. He states that thus lower Court did not accept and act upon first report of said commissioner. Said Commissioner thereafter inspected spot accordingly and after conducting measurements in presence of parties and after referring to plans prepared fresh report and submitted it to Executing Court. In such circumstances his first report stood rejected and respondents could not have raised argument about its not quashing or setting aside expressly by lower Court. Learned Counsel argues that no such order was necessary and respondents were estopped from raising such objection. He further states that Commissioner was trust engineer i. e. chief of that department of local authority which sanctioned building plans. His technical knowledge and capacity was not in dispute. He was examined and cross-examined, and Court below has not made reference to his evidence at all. He states that earlier decree was accompanied by admitted plaint map which gave all measurements and spot inspection was done by competent technical person on the basis of said map and decree and he prepared a fair plan giving details of encroachment. Without considering these details and without considering his evidence, Court below has drawn erroneous presumption in relation to point "c" and failed to note the map appended to sale deed which in fact was plaint map itself. He further argues that law having permitted petitioner to file Suit for prohibitory relief is not helpless and respondents who violated prohibitory decree cannot be given advantage by finding out any loophole in Order 21, Rule 32 (5) CPC. He argues that respondents are dutybound to abide by prohibitory decree and if they are not removing the obstruction/encroachment, executing Court can very well permit petitioner to do it and extend her necessary protection and help for that purpose. He relies upon judgment of this Court in case between (Yashodabai Ganesh Naik Vs. Gopi mukund Naik) , reported at 2003 (1) Bom. C. R. (P. B. ) 346 : 2002 (3) Mh. L. J. 801 to draw analogy and substantiate his arguments.