DAGDOBA TRYMBAK MULEY Vs. MAINABAI HARCHAND RAJPUT

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith and is heard.

(2.) The issue involved in the case is about encroachment. The fact of encroachment can be proved by oral evidence of the plaintiffs and other witnesses. The extent of encroachment, however, cannot be proved in absence of actual measurements and evidence of the measurer. Admittedly, in the present case, measurement has been carried out, however, the person, who has carried out the same, was not examined. An application was made under rule 27 of Order 41 of Civil Procedure Code for examining the said witness, which was rejected. Hence this petition.

(3.) The question, that arises, is whether the prayer for examining such witness by taking recourse to Rule 27 of Order 41 should be granted. What is vivid from record is that in absence of proof of measurement, it is convenient for the Court to decide the suit in negative, namely holding that the extent of measurement is not proved, since the measurement map is an admitted document.