1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR First Appeal No. 357 of 2011 Vidyanand s/o Balkrushna Ogale ...Versus... Nilkanth s/o Baliram Sawarkar Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. R.Sharma h/f Mr. A.Parchure Advocate for appellant. Mr.Kothari Advocate for the Respondent. … CORAM : A.B. CHAUDHARI, J. DATED : 21.07.2011. This appeal is filed by the original defendant against the dismissal of counter- claim and the judgment and decree dated 27.8.2010 passed by 3rd Joint Civil Judge,, Sr.Dn., Nagpur, in Special Civil Suit No. 818 of 2004. In support of appeal, learned counsel for the appellant argued that the court below ought to have passed the decree on the basis of report of City Surveyor (Ex.51, though no plaint map was filed for removal of encroachment. He further submits that even if there is default or carelessness on the part of defendant in the counter-claim, the Court was under a duty/obligation to direct the defendant 2 to file plaint map or in the alternative to appoint a Commissioner for finding out the truth. He relied on the decision of supreme court in Pratibha Singh & anr. v. Shanti Devi Prasad & anr. - AIR 2003 SC 643 and argued that there is failure on the part of the trial court in the above context. He further argued that the respondent/plaintiff could not have sold the area more than he held and owned. But it appears that the vendor of the respondent/ plaintiff had sold excess area of 200 sq. ft. which he never owned and the said area was in fact the encroached area on the property belonging to defendant/present appellant. Per contra, Mr.Kothari, learned counsel for the respondent/plaintiff in opposition to the counter-claim and rather this appeal invited my attention to para 5 of cross- examination of defendant and argued that the inclination of this Court expressed during the hearing to remand the counter-claim for fresh trial, particularly in the light of said decision of supreme court, would be of no use and would pre-judicially affect the interest of the respondent/plaintiff. Distinguishing the judgment of supreme court, he further argued that there is no obligation which can be found out in the facts of the present case on the Court to proceed to support the case of the plaintiff. It is none of the duty of the Court to somehow decree the suit by issuing directions to the plaintiff, particularly in 3 the instant case where not only plaint map but the subsequent stages and the admissions made in the evidence certainly are predatory to the case of the appellant. He therefore argued that the principle set out by the Supreme Court in the said decision will have no application in the instant case. He, therefore, prayed for dismissal of the appeal. Having heard learned counsel for the rival parties, the only point that arises for my determination is : “Whether the appellant/defendant proved his counter-claim for removal of encroachment allegedly made by plaintiff in accordance with law, or by required amount of evidence?” I have gone through the impugned judgment and decree made by the trial Court so also the evidence tendered before the trial court. Perusal of the counter-claim filed by the appellant/defendant shows that the counter- claim was filed just because the appellant wanted to file a counter-claim. The counter- claim is nothing but a plaint. One who files the suit must file the suit with full responsibility and in accordance with law. Perusal of the counter-claim, to my mind, shows that the appellant stated therein that the court should itself evaluate the claim/counter- claim and then tell the appellant the court-fee to be paid. The counter-claim begins with this type of averments. Not only that, reading of 4 the counter-claim which is hardly in 10-12 lines, does not show any particular or specific claim about the area of encroachment and the manner in which the encroachment was allegedly made or in reference to the purchases made by the parties and then the entitlement of the parties to the plot. Thus the very basis for setting counter-claim, in my opinion, is not in the form of plaint nor the body of the counter- claim depicts any such averments made. That apart, looking to the evidence of the appellant, and particularly para 5 of his cross-examination, it is clear that the appellant has continued to prosecute the counter-claim in the same casual manner. Reading of para 5 of his cross- examination shows that from 1975 till the date of lodgement of counter-claim he never raised a dispute about the encroachment being removed through the process of court. That apart, when the measurements were said to have been made by the City Surveyor, he did not know whether any notice of such measurement was given to the other side. The city surveyor who had allegedly measured was never brought into witness-box for proving measurements or for the test of cross- examination. As a matter of fact, when the appellant wanted to rely upon Ex.51- City surveyor's report or the measurement drawn by him, the burden was on the appellant to bring the said City Surveyor and make him available for cross-examination. But that was not done. 5 The appellant is not sure as to whether the city surveyor had measured the plots of appellant and respondent both. The evidence no where shows that the city surveyor had collected the title-document or title-document of predecessor-in-title of the respondent and thereafter proceeded to make measurements. Not only that, the appellant categorically stated in his cross-examination that he does not know what portion of the suit property was encroached by the respondent/ plaintiff. In such state of affairs, particularly when the appellant is well educated, it is not possible for this Court to hold that the trial Court should have on its own proceeded to appoint Commissioner or directed the appellant to file a plaint map. After all, it is not possible to forget the basic principle that the plaintiff must stand or fall on his own. In the light of the said principle, I find that the trial Court was not under obligation/duty, as contended by the learned counsel for the appellant, to appoint a Commissioner or to ask the appellant to file plaint map. In the result, the above point is answered in negative. There is no merit in the First Appeal. F.A. No. 357 of 2011 is dismissed. There shall be no order as to costs. Judge 6 /TA/