1 sa.269-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.269 OF 2010 Jagu Krishna Bhosale ..Appellant Vs. Anandrao Yadu Bhosale and others ..Respondents ......... Mr.Dilip Bodake, for appellant. ......... CORAM: R.G.KETKAR, J. DATE : 28th JUNE, 2010. P.C. : This appeal is preferred by the original plaintiff challenging the judgment and decree dated 6 th February, 2010 passed by the learned Adhoc District Judge­3, Satara in Regular Civil Appeal No.288 of 2005 as also the judgment and decree dated 26 th August, 2002 passed by the learned Civil Judge Junior Division, Koregaon in Regular Civil Suit No.189 of 1996 in so far as rejecting the prayer made by plaintiff for recovery of possession of 24 R land by removing the house of defendants. The parties will hereinafter be referred as per their original status in the trial court. 2] Plaintiff instituted suit against the respondents original defendants for recovery of 24 R land and for perpetual injunction. It is the case of plaintiff that he is the owner of land bearing Gat No.131 to the extent of 56 R situate at village Apshinge, Taluka Koregaon, District Satara (for short “suit land”). 2 sa.269-10.sxw Defendants are the owners of Gat No.132 which is adjacent to the suit land towards north. It is alleged that defendants encroached 24 R land out of the suit land towards North side. When plaintiff got measured the suit property by the Taluka Inspector of Land Records (for short “T.I.L.R.”), it was revealed that defendants encroached to the extent of 24 R land out of the suit lands. Defendants also carried out construction of tin shed for cattle and one pakka house in the encroached portion. It was contended that defendants obstructed plaintiff and also tried to dispossess him. He therefore instituted present suit for perpetual injunction and for recovery of 24 R being encroached portion. 3] Defendants resisted the suit by filing the written statement and denied the claim of plaintiff. The learned trial Judge framed necessary issues on the basis of the rival contentions of the parties. The parties led oral as well as documentary evidence on record. The learned trial Judge came to the conclusion that plaintiff has established his title and possession over the suit land. He, however, held that plaintiff failed to prove that defendants made encroachment over the suit land and, accordingly, partly decreed the suit and issued injunction restraining defendants from causing any sort of obstruction in the peaceful possession and enjoyment of plaintiff over the suit land. In so far as the prayer for recovery of 24 R land by removing house of defendants is concerned, the learned trial Judge rejected the said prayer. Against this decision, plaintiff preferred appeal in the District Court. The learned Adhoc District Judge­3, Satara dismissed the said appeal by judgment and decree dated 6 th February, 2010. Against these decisions, plaintiff preferred present Second Appeal. Defendants did not challenge the decree of perpetual 3 sa.269-10.sxw injunction passed against them by the learned trial Judge. The controversy in the present Second Appeal is about correctness of the decisions of the courts below in dismissing the prayer of plaintiff for possession of the alleged encroached portion of 24 R land as also removal of the construction carried out by defendants. 4] Mr.Dilip Bodake, learned counsel for the appellant, submitted that plaintiff got measured the suit land by T.I.L.R. In view of Section 83 of the Indian Evidence Act, 1872 (for short “the Act”), as the map is prepared by the T.I.L.R. being an authority of the State Government, the court should presume the same to be correct. He submitted that even if the T.I.L.R. is not examined, the statutory presumption under Section 83 of the Act is available to plaintiff and, therefore, the courts below ought to have decreed the suit. In support of this submission he relied upon the following judgments:­ 1. The unreported decision of the learned single Judge of this court in the case of Ananda Dada Kuchekar and ors. Vs. Rajendra Wamanrao Gundage and anr., in Second Appeal No.696 of 2000 decided on 6 th December, 2000. 2. Tajmulhussain Mulla Mumtaz Hussain Vs. Satish Bhanudas Chavan, 1994 Mh.L.J. 664. 3. Kishore H. Desai Vs. Lilawati Virji Chheda and ors., 1993 Mh.L.J. 1155. 4. Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade, 2004(2)Mh. L.J.722. 5. Kashinath s/o.Ramkrishna Chopade Vs. Purushottam Tulshiram Tekade & ors., 2005(4)All M.R. 519. 4 sa.269-10.sxw 6. Yesabrao s/o.Rangrao Lokhande Vs. Maroti s/o. Late Nagan Bitewar, 2004(1)All MR 909. He further submitted that the courts below rejected the prayer for recovery of possession of the encroached portion of 24 R on the ground that plaintiff did not examine T.I.L.R. He has, therefore, filed Civil Application No.746 of 2010 under Order 4 Rule 27 of the Code of Civil Procedure, 1908 for permission to examine the T.I.L.R. as witness who carried out measurement and prepared map. He submitted that at any rate, defendants admitted in the written statement that they have made construction of cattle shed and pakka house in the suit land and, therefore, the courts below ought to have decreed the suit in respect of recovery of the encroached portion of 24 R. 5] I have considered the submissions made by the learned counsel for the appellant as also perused the material on record. In the present appeal, the controversy is only in respect of the rejection of plaintiff’s prayer for recovery of possession of 24 R being alleged encroached portion by defendants. In support of this prayer, plaintiff relied upon the map prepared by the T.I.L.R. He, however, did not examine the T.I.L.R. who prepared the map. It was submitted that under Section 83 of the Act, there is statutory presumption about the correctness of map prepared by the T.I.L.R. In view of this, even if plaintiff did not examine the T.I.L.R. on the basis of map prepared by him, the courts below ought to have granted the prayer. 6] In the case of Ananda Dada Kuchekar and ors. (supra), during the pendency of the suit before the trial court, the District Inspector of Land Records (D.I.L.R.) came to be appointed for measuring the land in question. The report of the D.I.L.R. was submitted in the due course and the Surveyor 5 sa.269-10.sxw who carried out the measurement was also examined. However, the survey report of D.I.L.R. was found procedural flawed on the ground that the notices were not issued to the adjacent land owners and for other reasons. Since the survey was carried out without issuing notices to the parties concerned, this court, in order to prevent miscarriage of justice, directed for conducting the survey afresh. In my opinion, the said judgment does not assist plaintiff as in the instant case plaintiff did not examine the T.I.L.R. who prepared the survey. 7] In the case of Tajmulhussain Mulla Mumtaz Hussain (supra), plaintiff had applied to the trial court for appointment of the Commissioner for measuring his portion of land. The application was rejected on the ground that both the parties had carried out measurement of land and the maps were on record. In that context, this court observed that the existence of various maps on record which were not consistent with each other, itself was the ground which obliged plaintiff to apply for appointment of Commissioner. Making an order for appointment of Commissioner would not have prejudiced the interest of either of the parties as it was only in that eventuality, that it was possible for the Court to arrive at a proper conclusion. The need of the court having for itself assistance of an independent authority, for the purposes of enabling it to decide the issue as aforesaid, could hardly be over­ emphasized. It is in this background, the court allowed the revision preferred by plaintiff and ordered that the trial court shall issue the Commission order and the Commissioner shall submit his report. In my opinion, the facts in the present case and the facts in the case of Tajmulhussain Mulla Mumtaz Hussain (supra) are different and consequently, the said judgment does not 6 sa.269-10.sxw advance to the case of plaintiff. 8] In the case of Kishore Vs. Lilawati (supra), the Commissioner made report without issuing notices to the other side and the question whether the court has discretion to issue Commission under Order 26 Rule 9 ex­parte and whether the Commission can be executed without giving notice to the concerned parties. It was held that the court has discretion to issue commission under Order 26 Rule 9 ex­parte. However, after issuance of the commission, it is duty of the court to issue notice to the concerned party and the commission cannot be executed unless notice is give to all the parties. The provisions of the Order 26 Rule 18 are mandatory provisions. If for any reason the court fails to give notice, it becomes the duty of the Commissioner to give notice to the other party. In my opinion, the said decisions does not advance to the case of plaintiff. 9] In so far as the judgment in the case of Kashinath Shastri (supra) is concerned, it was submitted when there is dispute about encroachment, the Commissioner must be appointed by the court to take joint measurement. In the very judgment, Section 83 of the Act was considered and it was held that the map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. To that effect there are also decisions in the case of Kashinath Chopde (supra) and Yesabrao. Having regard to these judgments, it is clear that the onus of proving the map lies with the party who produces it. Section 83 of the Act contemplates that the court shall presume that the maps or plans purporting to be made by the authority of the Central Government or 7 sa.269-10.sxw any State Government were so made and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate. As observed earlier, plaintiff relied upon the map prepared by the T.I.L.R. but did not examine him. In the case of Yesabrao (supra) in paragraph no.11 it is observed to the following effect:­ “11. The analysis of the aforesaid section would show that the words employed, “but maps or plans made for the purpose of any cause must be proved to be accurate” would clearly indicate that the maps or plans made for the purpose of any cause must be proved to be accurate and no presumption of law can be drawn that those maps or plans are accurate which are prepared at the instance of the parties for the purpose of the cause. The onus of proving that such a map is accurate lies on the party who produced it. The maps must be proved by the person who has prepared them They are post litem motesa and lack necessary trustworthiness. Where the maps are made for the purpose of a suit there is, even apart from fraud which may exist, a tendency to colour, exaggerate and favour which can only be counteracted by swearing the maker to the truth of his plan. Hence, there is no presumption of accuracy in respect of the map or plan which is made for a particular cause and it goes without saying that a map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. In any case, in which there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and/or subsequent reference in the pleadings or judgment to place the mark on a 8 sa.269-10.sxw map should be referred to this map which must be attached to the decree and signed by the Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case all over again. The map should be drawn with the North at the top and letters marking points should not be put in side ways or upside down.” 10] In view of above, I do not find that the courts below have committed any error in rejecting the prayer made by plaintiff for recovery of possession of the encroached portion of 24 R. Basically, though plaintiff produced the map prepared by T.I.L.R., he did not establish the accuracy of said map by examining the T.I.L.R. It was further submitted that at any rate, defendants in the written statement admitted encroachment made by them over the suit land. I have perused the written statement filed by defendants wherein it was contended that, if ultimately it is established that defendants have made encroachment and carried out construction, they are ready and willing to pay the price for the encroached portion. Both the courts below have held that plaintiff has not established the alleged encroachment. In my opinion, it is not at all admission on the part of defendants that they have made any encroachment. In fact, they have denied the contentions raised by plaintiff about the alleged encroachment. However, they contended that if ultimately it is found that they have made encroachment, they are ready and willing to pay the price of the encroached portion. I do not find any substance in the submission made by the learned counsel for the appellant in this regard. I, therefore, do not find that the courts below committed any error in rejecting the prayer so made by plaintiff. 9 sa.269-10.sxw 11] Plaintiff has taken out Civil Application No.746 of 2010 for permission to examine the Surveyor/T.I.L.R., Koregaon, District Satara as witness who has prepared the map of the suit property bearing Block No.131 admeasuring 59 R and Block Nos. 132 and 133 situate at village Apshinge, Taluka Koregaon, District Satara and allow to produce additional evidence in the above appeal as per provisions of Order 41 Rule 27 r/w. Section 107 of the C.P.C. In the said application, the reason given in respect of this prayer is that plaintiff’s advocate did not feel it necessary to examine the T.I.L.R. as a witness and, therefore, he was not examined. It was submitted that since the said fact is admitted by the parties, it need not be proved by examining the witness. In my opinion, it is not a justifiable ground for allowing the production of additional evidence, that too, at the stage of Second Appeal. No case for exercise of power under Order 41 Rule 27 of the C.P.C. is made out to grant prayer clauses (a) and (b) of the said Civil Application. 12] In the result, Second Appeal does not involve any substantial question of law and the same is dismissed with no order as to the costs. Civil Application No.746 of 2010 also stands dismissed with no order as to the costs. In view of the dismissal of the Second Appeal and Civil Application No.746 of 2010, another Civil Application No.745 of 2010 does not survive and the same also stands dismissed with no order as to the costs. [R.G. KETKAR, J.]