1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4871 OF 2009 1. Chandrabhan Parshram Date, age 65 years, Occ. Agriculture, 2. Saraswati Parshuram Date, age 80 years, Occ. Agriculture, R/o.Karsul, Tal.Niphad, Dist. Nashik. Petitioners versus Bhaskar Devram Takate, age 45 years, occ. Agriculture, R/o.Karsul, Tal.Niphad, Dist.Nashik. Respondent Mr.R.N.Gite for petitioners. Mr.S.K.Shinde for respondent. CORAM : A.S.OKA, J. DATE : 26th February 2010 JUDGMENT: . Heard learned counsel for the parties. As the writ petition arises out of the orders passed in execution proceedings, the same is taken-up for final hearing at the admission stage. The challenge in this writ petition under Article 227 of the Constitution of India is to an order dated 2nd May 2009 passed by the Trial Court in execution application. The petitioners who are the original plaintiffs filed a suit 2 for removal of encroachment allegedly made by the respondent. The respondent is the 2nd defendant. The parties entered into a settlement and a consent decree was passed between the parties. An application for execution of the said decree was filed by the petitioners for executing the consent decree. On the application made by the petitioners, the Executing Court passed an order dated 30th March 2009 directing that a special bailiff be appointed to remove the encroachment made by the respondent as shown in the map drawn by the Taluka Inspector of Land Records, Niphad (hereinafter referred to as "the TILR") and to hand over possession of the encroached portion to the petitioners. Accordingly, the decree was executed by removing the encroachment and by handing over possession of the encroached portion to the petitioners. Thereafter, an application was made by the respondent in the Executing Court. It was alleged in the said application at Exhibit-32 that boundary stones fixed on the property were removed by the petitioners and on the basis of the consent decree the petitioners obtained possession of excess area of two to three gunthas out of the lands of respondent bearing Gat Nos.208, 210 and 221. It was contended in the application that the TILR be appointed as Court Commissioner for carrying out the survey and for determining the boundaries of the properties held by the parties. The said application was contested by the petitioners herein. On 2nd May 2009 , the said application at 3 Exhibit-32 was allowed. The operative part of the order reads thus :- "1) ... ... ... 2) TILR, Niphad is appointed as Court Commissioner for measurement of land block no.209, 210, 208 and 211 of village Karsui and to fix the boundaries and determine the actual possession of the plaintiff and to estimate the encroachment in suit property and file a detailed map and report in this Court at the earliest. 3) Both sides are directed to provide their assistance and revenue and CTS extracts, maps of the suit property to Court Commissioner. 4) The defendant is directed to deposit Rs.6000/- in this Court towards Court Commissioner fee and to bear all the incidental charges occurred from time to time in this connection within 14 days of this order." The challenge in this writ petition is to the aforesaid order. 2. The learned counsel appearing for the petitioners invited my attention to the consent decree passed by the Trial Court in the suit filed by the petitioners. He submitted that the TILR had already measured the adjoining lands of the parties on 22nd March 2006 and the boundaries were fixed. He pointed out that as per the survey carried out by the TILR on 22nd March 2006, the encroached portion was identified and demarcated. He submitted that as per the demarcation of the encroached portion, the decree was executed. He submitted that there was no occasion for the Trial Court to appoint the 4 TILR as Court Commissioner for fixing the boundaries and ascertaining the factual allegation regarding encroachment. He submitted that the order impugned could not have been passed in execution proceeding of a decree which is already executed. 3. The learned counsel for the respondent submitted that the contention of the respondent is that while executing the decree, the possession of excess land was taken over by the Court Bailiff from the respondent. He submitted that the question whether the possession of the excess land was taken over will have to be decided only in execution proceedings in view of section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). He, therefore, submitted that the Trial Court was justified in appointing the TILR as Court Commissioner. He submitted that the effect of the impugned order is that whether the allegations made by the respondent are true or not will come on record and, therefore, there is no prejudice to the petitioners. He submitted that no interference is called for in the writ jurisdiction. 4. I have given careful consideration to the submissions. The consent terms filed in the suit is annexed to the petition. It must be stated here that the case made out by the petitioners in the suit is that the petitioners were the owners of land bearing gat nos.209-A, 209-B 5 and 209-C. The allegation is that there was encroachment made on the said lands by the respondent- defendant no.2. It was alleged in the plaint that first and second defendants were the owners of the adjoining lands bearing gat nos.207, 208, 210, 211 and 212. Consent terms record that on 22nd March 2006 the TILR carried out survey and measurements of the lands held by the petitioners as well as lands held by the respondent. Clause (2) of the consent terms clearly record that the survey and measurements carried out on 22nd March 2006 have been accepted by the parties to the suit. The said clause records that after carrying out the survey, the TILR has shown the encroachment on the suit lands held by the petitioner and the possession of the encroached portion was agreed to be handed over by the respondent to the petitioner. Clause (3) of the consent terms provides that as per the survey carried out on 22nd March 2006 with the assistance of TILR, the boundaries were actually demrcated by fixing boundary marks in the form of cement poles. It was further provided that on the boundary there will be a bandh maintained having width of 2 feet, and out of the width of 2 feet, 1 feet width will be out of the properties owned by the rival parties. The consent terms further provide that the trees inside the respective boundaries of the parties fixed by the TILR shall be owned by the respective parties. The said compromise was recorded before the Lok-Adalat and a decree was passed in terms of the compromise. 6 5. In the execution application filed by the petitioners, on 5th January 2008 an order was passed directing that the TILR should be appointed to remove the encroachment carried out by the respondent. The TILR was directed to visit the site and remove the encroachment. The TILR submitted a report pointing out that he was not authorized to execute the decree and the said work will have to be carried out by appointing a special bailiff. Accordingly, an application was made by the petitioners for appointment of special bailiff. The said application was allowed and a special bailiff was appointed. While appointing the special bailiff, the Executing Court directed that though the special bailiff was appointed to execute the decree, the TILR will have to carry out the work of actual demarcating the boundaries. Thereafter it appears that an application was made by the respondent herein praying that before possession of the encroached portion is taken over, the boundaries between the properties of both the parties should be fixed and thereafter if it is revealed that there is encroachment made by the respondent, the possession thereof shall be handed over to the petitioners. An order was passed on 30th March 2009 by the Executing Court directing the Court Bailiff to execute the decree by removing the encroachment as may be shown by the TILR, Niphad. On the basis of this order, the execution was carried on 23rd April 2009. 7 6. As stated earlier, the parties in the consent terms had accepted the work of measurement and survey carried out by the TILR on 22nd March 2006. The decree was passed for removal of encroachment as shown by the TILR at the time of survey and measurements carried out on 22nd March 2006. Clause (3) of the consent terms contemplated that as per the survey and measurements carried out on 22nd March 2006, the boundaries shall be actually demarcated on the site by fixing cement poles. The said exercise was required to be done in execution of the decree and that was a precise prayer made by the petitioners. What was required to be done was to actually demarcate the boundaries between two properties as fixed in the survey carried on 22nd March 2006 and thereafter to dispossess the respondent of the encroached portion and to place the petitioner in possession thereof. It is true that the grievance made by the respondent that possession of excess area was taken over by the Court bailiff will have to be considered and decided by the Executing Court in the light of Section 47 of the said Code. However, the effect of the impugned order is that the TILR has been directed to re- measure the lands and thereafter to decide whether there was any encroachment. The allegation made in the application filed by the respondent was that under the guise of executing the decree, the land having area of two to three guntha forming part of gat nos.208, 210 and 211 was taken over by the Court Bailiff. While dealing with the 8 said allegation made in the application filed by the respondent, at highest, the Executing Court could have appointed the TILR as Court Commissioner to ascertain whether any area forming part of the aforesaid property of the respondent has been taken over by the Court Bailiff. The Court Commissioner will have to decide the issue in the light of the survey and measurement already carried out on 22nd March 2006. Now, the boundaries cannot be allowed to be fixed afresh as the parties have accepted the survey and measurements carried out on 22nd March 2006. Therefore, the impugned order will have to be modified to that extent. 7. Hence, the writ petition is disposed of by passing following order : : O R D E R : (a) The impugned order dated 2nd May 2009 is modified. The TILR, Niphad is appointed as a Court Commissioner to visit the properties bearing gat Nos.209-A, 209-B, 209-C as well as gat nos.208, 210, 211 and 212 of village Karsul taluka Niphad; (b) The TILR, Niphad shall fix the boundaries in terms of survey and measurements carried out on 22nd March 2006. Thereafter the TILR, Niphad will ascertain whether the 9 petitioners have been placed in possession of any part of lands bearing gat nos.208, 210 and 211. The Court Commissioner will draw a map and will submit the same along with his report to the Executing Court; (c) The costs and charges of the TILR, Niphad will have to be paid by the respondent; (d) The TILR, Niphad shall carry out the exercise expeditiously and submit a report to the Executing Court; (e) The Executing Court will permit the parties to submit objections to said report, if any. After considering the report, the Executing Court will proceed to pass further orders after hearing the parties; (f) The writ petition is partly allowed in above terms; (g) The Trial Court to act on an authenticated copy of this and shall issue commission to the TILR, Niphad. (A.S.OKA, J.)