1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.392 OF 2008 Uttam Appa Atole and ors. ..Appellants Vs. Kisan Ganpate Atole and ors. ..Respondents ......... Mr.P.P.Killedar, for appellants. Mr.C.R.Sonawane, for respondent nos.1, 2A to 2D and 3 to 11. ......... CORAM: R.G.KETKAR, J. DATE : 21 st JUNE, 2010. P.C. : This appeal is preferred by the original plaintiffs challenging the judgment and decree dated 8 th October, 2007 passed by the learned Adhoc District Judge, Baramati in Civil Appeal No.21 of 2007. By the impugned judgment, learned District Judge allowed the appeal preferred by the respondent nos.1 to 11 who are the original defendants and dismissed the suit instituted by the appellants. 2] The appellants instituted suit for removal of encroachment of 18 Ares and for perpetual injunction among other prayers. The appellants contended that they are the owners of the suit land bearing gat no.617 admeasuring 4.45 H situate within the limits of village Ravangaon, Taluka Daund (for short “suit land”) and they are cultivating this land. It is their case that towards the northern side of the suit land, gat no.620 of respondents/defendants is situate. It is their further case that the respondents have damaged the common east-west band situate 392-08.sxw 2 between the suit land and gat No.620 and thereby committed encroachment over 18 Ares suit land to the northern side. In order to ascertain the encroachment, they made an application to the Taluka Inspector of Land Records, Daund. Pursuant to that application, PW 2 Prakash Shivtare measured the suit land in the presence of adjoining land holders and prepared a map which was at exhibit 63. On the basis of the said map, the appellants issued notice dated 15 th February, 2000 calling upon the respondents to remove the encroachment. Since the notice was not complied, present suit was instituted on 14 th March, 2000. 3] Respondents resisted the suit by filing written statement exhibit 13. They denied that they have made encroachment on the suit land admeasuring 18 Are. They have also challenged the measurement carried out by the PW 2 Prakash Shivtare on the ground that without giving notice to them, survey was carried out behind their back. As pointed out earlier, the trial Court decreed the suit against which, the respondent preferred Appeal which was allowed by the learned District Judge. It is against this judgment and decee present Second Appeal is preferred. 4] Heard Mr.P.P.Killedar, learned counsel for appellants and Mr.C.R.Sonawane, learned counsel for respondent nos.1, 2A to 2D and 3 to 11. 5] Learned counsel for the appellants submitted that PW 2 Prakash Shivtare is a Government Servant and he has prepared the survey. Having regard to the provisions of Section 83 of the Evidence Act, 1872, the map prepared by him exhibit 63 is admissible in the evidence. In support of this submission, he relied 392-08.sxw 3 upon the judgments of this Court in the cases of Kashinath Ramkrishna Chopade Vs.Purushottam Tulshiram Tekade and others, 2005(6)Bom.C.R.267 and Prakash Harising Bhadoriya and another Vs. Dada Jago Chahande, 2005(1) Bom.C.R. 494 as also judgment of the Apex Court in the case of Ram Kishor Sen and ors Vs.Union of India and ors., AIR 1966 SC 644. 6] On the other hand, Mr.Sonawane, learned counsel for respondents supported the impugned judgment. He submitted that PW 2 Prakash admitted in his evidence that he did not issue any notice to the respondents. 7] Learned District Judge in paragraph no.15 of the impugned judgment has observed that PW 2 Prakash did not issue notice to any of the respondents. In fact, though Kalavati, mother of respondent nos.1 to 6 died on 12 th September, 1998, PW 2 Prakash claims that he has issued notice to her under certificate of posting on 26 th March, 1999. Learned District Judge held that the as per the survey rules PW 2 Prakash did not give notice to the respondents and carried out the survey behind their back. In view of this, learned District Judge allowed the appeal and dismissed the suit. 8] Section 83 of the Evidence Act, 1872 contemplates that the court shall presume that the maps or plans purporting to be made by the authority of the Central Government or 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. The analysis of Section 83 and, in particular, 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 392-08.sxw 4 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. 9] The learned District Judge has recorded a finding that PW 2 Prakash did not give notice to the respondents and carried out the survey behind their back. It, therefore, cannot be said that the map produced by the appellants is accurate and its accuracy is not proved by the appellants. The learned District Judge has also considered the admission given by the appellants’ witness and held that there was not encroachment as alleged by the appellants. 10] Learned counsel for the appellants relied upon the judgment in the case of Kashinath (supra). The learned single Judge in that case considered the provisions of Section 83 of the Evidence Act and held that the map at exhibit 32 annexed to the plaint cannot be made basis for grant of relief to the plaintiffs, as it is not possible to accept that it was an accurate map. In that case, neither the City Survey Officer nor any expert was appointed for the purpose of local 392-08.sxw 5 investigation. The learned single Judge was pleased to remand the suit to the trial Court with certain directions. In the instant case, the appellants examined PW 2, however, as observed earlier, PW 2 did not give notice to the respondents and, therefore, the Appellate Court came to the conclusion that the map is not admissible in evidence. 11] The learned counsel also relied upon the judgment of this court in the case of Prakash Harising Bhadoriya (supra). In that case, the court observed that the map enclosed with the plaint was not signed by anybody nor the said map was proved to be accurate one as required under Section 83 of the Evidence Act. Learned counsel for the appellants also relied upon the judgment in the case of Ram Kishor Sen (supra). In paragraph 12 of the said judgment, the Apex Court observed that the presumption of the accuracy can be drawn only in favour of maps which satisfy the requirements prescribed by the first part of Section 83. Even if the map is held to be relevant, its accuracy was not at all established in that case. 12] I am, therefore, of the opinion that the reliance placed by the learned counsel on these authorities does noes not advance the appellants’ case any further. After hearing the learned counsel for the parties, I am satisfied that the learned counsel District Judge has not committed any error. It cannot be said that the learned District Judge has misread the evidence or that the findings recorded by the District Judge are based upon no evidence. Second Appeal does not involve any substantial question of law. Second Appeal is dismissed. [R.G. KETKAR, J.] 392-08.sxw