1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Second Appeal No.425/2010 Abdul Khan s/o Masum Khan Vs. Smt. Indubai wd/o Ashok Nimje =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. P. M. Abhyankar, Advocate for the appellant. Mr. R. I. Laharwani, Adv. h/f Ms. Aruna Balpande, Advocate for the respondent. CORAM : R.M. SAVANT, J. DATED : 2/2/2011. Heard the learned counsel for the parties. The above Second Appeal challenges the judgment and decree dated 25.3.2005 passed in Regular Civil Appeal No. 369/2008 by which the decree of dismissal of the suit being Regular Civil Suit No.1008/2005 came to be set aside and consequently, the said suit came to be decreed, The bone of contention in the present proceeding is the alleged encroachment carried out by the appellant herein who was the defendant in the said suit in a three feet wide passage which lies to the North of the property owned by the plaintiffs i. e. City Survey nos.142 and 143. The defendant is the owner of City Survey no.137 2 and, therefore, the said passage would come towards South of the property of the defendant. The plaintiff had filed the said Regular Civil Suit No.1008/2005 for mandatory injunction directing the defendant to remove the structure and the construction made in the portion marked in red colour shown in the Commissioner’s map annexed with Exhibit 92 on the northern side of City Survey no.143. It was the case of the plaintiff that in view of the said construction which was illegal, the plaintiff’s three windows could not be opened. It was further case of the plaintiff that the complaints were made to the Municipal Authorities and notice came to be issued to the defendant. It was further case of the plaintiff that defendant had cut down the wooden rafters of the house of the defendant and erected the wall up to slab level and laid down the slab on it, resulting in damage to the roof and the structure of the plaintiff. The defendant in his written statement denied the case of the plaintiff and contended that the said suit was filed by the plaintiff for oblique motives. The defendant admitted that the property owned by him bears Survey No. 137. The parties went to trial and led evidence in support of their respective cases. 3 It would be pertinent to note that on the application of the plaintiff and looking to the controversy involved, the trial Court had appointed the City Survey Officer as the Court Commissioner to submit a report as regards the position on the suit site in question. The City Survey Officer accordingly submitted a report dated 8.1.2008. The said report came to be exhibited and was marked as Exhibit 92. The said report was objected to by the defendant by filing his say which was marked as Exhibit 94. Pertinently, the undertone of the said reply was that the report could not be relied upon as it was prepared under the influence and to back the plaintiff. Significantly, the contents of the said report were not controverted. Save and accept, it is stated that the said report was prepared by the City Survey Officer without taking into consideration the City Survey record. The parties also filed maps which came to be exhibited as Exhibits 44, 45, 84 and 85. The Trial Court on the basis of the documentary evidence on record dismissed the suit. The Trial Court did not deem it appropriate to rely upon the report (Ex.92) of the Court Commissioner. 4 Being aggrieved by the dismissal of the suit, the plaintiff filed Regular Civil Appeal No.369/2008. Considering the findings recorded by the Trial Court, the Appellate Court considered the evidence threadbare and especially the report of the Commissioner (Ex. 92) and on such appreciation of the evidence recorded a finding of fact that the defendant had, in fact, encroached upon the said three feet lane to the extent mentioned in the impugned judgment and order. The First Appellate Court, therefore, decreed the suit and directed the defendant to remove the offending structure and was restrained by permanent injunction from carrying out any construction in the portion marked in the Commissioner’s report Exhibit 92. As indicated above, it is is the said judgment and decree, which is the subject matter of the present appeal. It is sought to be contended by Mr. Abhyankar, learned counsel for the appellant/defendant that though the Commissioner’s report was exhibited and marked as Exhibit 92, the same did not obviate the need to prove the said report in accordance with the provisions of the Evidence Act. The learned counsel further contended that since the three feet lane is not of the ownership of 5 the plaintiff, he did not have the locus standi to file the suit. Insofar as the first submission is concerned, the provisions of Order XXVI Rule 9 of the Code of Civil Procedure posit that the report submitted by the Commissioner appointed by the Court would form part of the evidence and, therefore, in the said circumstances, in my view, normal proof of the said report is not required though the parties may summon the Commissioner for examination as a witness or for cross-examination on the basis of the said report. In the instant case, the learned counsel for the appellant/defendant fairly conceded that though the Appellant/defendant was aggrieved by the said report, no formal application for cross-examination of the Commissioner was made before the Court. In my view, therefore, there is no merit in the contention urged on behalf of the Appellant/defendant. Insofar as the other contention regarding the locus of the plaintiff is concerned, may be that the plaintiff is not the owner of the three feet passage in question, but that would not disable him from filing a suit as the plaintiff has in ample terms demonstrated the inconvenience which has been caused to him on account of the encroachment carried out by the defendant in three feet wide passage. As regards the said submission, it is also required to be 6 noted that locus of the plaintiff to file the suit of the nature filed was neither questioned in the Trial Court nor in the First Appellate Court. Therefore, it is now not open for the appellant at this stage to question the locus of the plaintiff to file the suit. As indicated above, the Appellate Court has gone threadbare into the evidence adduced in the said suit and also considering the findings recorded by the Trial Court has cited reasons as to why the findings recorded by the Trial Court cannot be sustained. In the light of the finding of fact recorded by the First Appellate Court as regards the unauthorised construction carried out by the defendant to the extent mentioned in the impugned order, in my view, no substantial question of law arises for consideration in the above Second Appeal, which is accordingly dismissed. JUDGE Ambulkar