1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.42 OF 2010 IN SUIT NO. 654 OF 2007 Sarthak Co.op. Hsg. Soc. Ltd. ..Plaintiff. Vs. Laxmibai Shankar Mungekar and ors. ..Defendants. Mr. S. C. Naidu with Mr. Y. C. Naidu and N. P. Dalvi i/by C. R. Naidu & Co. for the plaintiff No.1. Mr. Veenit Naik i/by Sandip Jinsiwale for the Defendant Nos. 1 to 6. Mr. Sandesh Patil i/by Sanjay Gawde for the Defendant Nos. 7 to 10. CORAM : R.S. MOHITE, J. DATE : 20th July, 2010 PC : 1 This is a notice of motion taken out by the original plaintiff for the following main reliefs. (a) That pending hearing and final disposal of the suit and upon completion of admeasurement and physical demarcation of the plot to permit the plaintiff to construct a boundary wall along with boundary marks enclosing the entire plot of land bearing Plot 2 No.14-A, Survey No.97, Hissa No.2, CTS 333, Aarey road, Peru Baug, Village Pahadi Goregaon (E), Mumbai- 400 063 and marked in orange boundary and excluding the portion marked in purple, in the plan submitted by the City Survey office, Goregaon, Mumbai under cover of their letter bearing No.1645 dated 30th November, 2009. b) That pending hearing and final disposal of the suit and in the event any dispute is raised by defendants, then the respondent No.2, City Survey officer be directed to, within 30 days, to admeasure and physically demarcate and place boundary marks along the thick orange line on the plan annexed to letter bearing No.1645 dated 30th November, 2009 so as to encompass plot of land bearing Plot No.14-A, Survey No.97, Hissa No.2, CTS 333, Aarey Road, Peru Baug, Village Pahadi, Gorergaon (E), Mumbai 400 063 at the cost of the defendants. c) That pending hearing an final disposal of the suit, Defendant Nos. 1 to 10 be directed to remove all constructions equipment and material, debris, soil etc. from the plot presently lying and 3 being on the plot encompassed in thick orange line in plan submitted under letter bearing No.1645 dated 30th November,2009. d) That pending hearing and final disposal of the suit and in the alternate to prayer clause (c) above, the plaintiff be permitted to remove all construction material, equipment, debris, soil, etc. lying and being in the vacant portion of the plot on the west side demarcated by red hatched line subject to recovery of costs from Defendant Nos. 1 to 10 at the time of hearing of the suit. e) That Respondent No.1 be directed to render all necessary assistance to the plaintiff for erecting the boundary wall and removal of construction material and equipment, debris, soil, etc, and to grant requisite permission/sanction/approval in that regard. 2 It is seen that pending disposal of this motion by an order dated 17.9.2009, this court had directed issuance of a notice to the DILR with a request to demarcate the property as per agreement dated 1.11.1981. DILR has accordingly filed a 4 report dated 30.11.2009. On perusal of the report, it is seen that according to the DILR, he prepared the report after measuring the land in presence of the representatives of the plaintiff and the defendants. In his report he further refers to a demarcation made in 1966 when Town Planning Scheme was implemented. According to him, the record in this regard indicates that plot was demarcated into Plot No.333 and 333/1 to 15, the total area of the original plot was fixed as 1582-sq. mtrs., from the same an area of 152.5 sq. mtrs. in respect of Plot No.333/1 to 15 was reduced and the area of Plot No.333 was fixed at 1429-sq.mtrs. 3 It is seen that in so far as agreement to sell in favour of the plaintiff’s members, the area of the plot of land bearing Plot No.333 is shown as “1862 sq. yards or there about equivalent to “1862 sq. yards or there about equivalent to 1429.5 sq. mtrs. or thereabout”. Though the notice of motion is based upon a report of the DILR dated 30.11.2009, the Advocate for the plaintiff states that no actual measurement was conducted. There are no such specific averments in the affidavit in support of the notice of motion. He raises a dispute about the actual area of plot bearing CTS No.333 on the basis of various documents. One of the document is the agreement executed by the defendants in favour of the society members. He contents that 1862 sq. yards referred to in the said agreement is not equivalent to 5 1429.5sq.mtrs. This argument is clearly after thought as the agreement is signed by the members of the society. Apart from this, it is not possible to determine from this agreement as to whether the actual plot area is 1862-sq. mtrs. or 1429.5 sq. mtrs. It is the plaintiff’s case that 1862 sq. yards would actually come to 1556.87 sq. mtrs. It is therefore, clear that areas as mentioned in this agreement are not only approximate areas but figures mentioned in the agreement appear to be incorrect. Reliance is thereafter placed upon the sanctioned plan document submitted by the defendants while constructing the society building. In my view, reliance upon such private documents will not be helpful to the plaintiff. As regards the area of the plot bearing CTS No.333 is concerned. only relevant record of the plot is the Government record maintained by the city survey department. This record has been relied upon by the DILR while submitting his report dated 30.11.2009. 4 Attempt in the notice of motion to seek a measurement through an order of the court also cannot be considered. This Court cannot be made an instrument for collecting evidence. Land Revenue Code provides procedure for applying for measurement and enables the interested parties to apply for a measurement. Such measurement are done subject to payment of fees and in accordance with rules which are 6 prescribed. 5 In so far as prayer (a) is concerned, since there is a serious dispute not only the about the area to which the plaintiff is entitled and also since allowing of this prayer will shut out the ingress and egress to the defendants to plot bearing Survey No. 333, the same cannot be granted. In so far as prayer (c) is concerned, the Advocate appearing for the defendant Nos. 7 to 10 states that he will shift the material upon the area of 152.5 sq.mtrs where erst while chawls which were demolished, were situated. He states that he will initiate the process of shifting within 15 days and complete the same in 4-weeks. Statement is accepted. In view of this statement and since I am not inclined to allow this motion, Notice of Motion is dismissed. It is made clear that if any of the parties to the suit applies to the City Survey officer for a measurement of the plot No.333 and plot No. 333/1 to 15, said measurement may be conducted at the costs of the party applying and according to rules. It is however, made clear that in so far as such measurements are concerned, parties are at liberty to prove the contents of the survey report by examining the concerned surveyor officer in accordance with law. (R.S. MOHITE,J.)