1 AO NO.127/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.127/2011 with CIVIL APPLICATION NO.9362 OF 2011 Jagjivanram Co-operative Hsg. Society, Padampura, Aurangabad Through its Secretary - APPELLANT VERSUS 1) Avtarsingh Harmendarsingh Lamba and another - RESPONDENTS ***** Mr.S.B.Talekar, Advocate for Appellant; Mr.Aniruddha Pathak, Advocate for Resp.No.1; Mr.SV Adwant, Advocate for Respondent No.2. Mr.KJ Ghute-Patil, AGP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 8th NOVEMBER, 2011. PER COURT : 1) Heard learned Counsel for the appellant (original plaintiff) extensively and finally. 2) The appellant, as plaintiff in Special Civil Suit no.89/2011, moved vide Exhibit-5, for grant of injunction. The learned Judge by the impugned order dated 26.4.2011 rejected Exhibit-5, however, imposed conditions upon the respondent (original defendant) in paragraph 13 thereof including soliciting an undertaking 2 AO NO.127/2011 before commencement of actual construction. This order is questioned in the present Appeal from order by the appellant. 3) The main thrust of the grievance put forth by Mr. Talekar is, by virtue of the order of this court dated 4th October, 2011, on payment of Rs.33,000/- by the appellant (plaintiff) measurement was caused by the authorities of the Land Records. However, the measurement is not carried in conformity with the procedure as no details of dimensions are given as to what was the area the plaintiff possessed or earmarked as per the Award or dimensions of the encrochments referred therein. 4) Mr.Talekar has placed basic reliance to the measurement caused on 26.5.1976 and 6.6.1976 showing certain encroachments by few persons in which, according to him, the predecessor in title of the defendants (respondent) is shown as one of the encroachers. 5) Without adverting to the de-merits of the map prepared by virtue of order of this Court dated 4th October, 2011, I find the order under challenge of the learned Judge does not call for interference for the following reasons :- 3 AO NO.127/2011 (a) The learned Judge in paragraph 13 has taken due care to secure interest of the plaintiff/Appellant in respect of the disputed property; (b) If any constructions is to be carried out, it would be certainly at the risk of the respondent/defendant therein, to face turmoil after decision of the suit; (c) The learned Judge on basic evaluation of the fact found no prima facie case to restrain the defendant (respondent) from carrying on any construction activities. (d) The plaintiff, for the reasons best known to him, did not place the original map of measurement when the land was allotted under the specific award. (e) The defendant/respondent has prima facie proved ownership and possession on CTS No. 19857 and construction permission. (f) The encroachment, if any, by the defendant to the extent of 108 sq. meters is not of September 2010, but relate back as per plaintiff's map to 1976 4 AO NO.127/2011 6) In view of the above situation and as this Court having reached to the confirmation of the order under challenge, the grievance of causing incorrect measurement by the authorities of the Superintendent of Land Records, needs to be addressed. 7) The order of this Court dated 4th October, 2011 specifies that the authorities should have given reference to the earlier record including the earlier measurement. Unfortunately, the defendant reflected such situation. The second aspect is, the directions were to the Superintendent, Land Records, but measurement seems to have been carried by the Surveyor. It does not indicate that it was under the direct control or instructions of the Superintendent of Land Record. This approach of the Superintendent, Land Records, calls for condemnation. 8) When specific directions are issued by this Court on 4th October, 2011, delegation of power was not contemplated and particularly to the Superintendent, Land Records, by directing his subordinate to cause measurement. In the light of this position, without further adding burden to the plaintiff/appellant herein, the Superintendent, Land Records would himself 5 AO NO.127/2011 visualize the situation and cause measurement under his directions and in his presence, of course, by giving a notice in advance to the parties litigating. Such measurement by the learned Superintendent, Land Records, shall be caused specifically with boundaries marking of the land owned by the plaintiff society or the so-called encroachment caused by the encroachers. Such exercise of issuance of notice is to be given within fifteen days’ communication and report to that effect be submitted to the learned Civil Judge, Senior Division, Aurangabad in Special Civil Suit No.89/2011 within forty five days thereafter. 9) With these observations the Appeal From order with CA are disposed of. ( K.U.CHANDIWAL ) JUDGE bdv/