1 FA.573.90 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 573 OF 1990 Balkrishna Mathuradas Pahelwan (Gupta) (since deceased through his heirs): 1(a). Mrs. Khurshid Wd/o. Balkrishna Gupta & ors. ... Appellants Versus Nityanand Co-operative Housing Society Limited. ... Respondent ----- Mr. P.S.Gidwani for the Appellants. None for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 29 th June, 2011. ORAL JUDGMENT: 1 This appeal was called out for final hearing yesterday. The submissions of the learned counsel appearing for the Appellants were heard yesterday. As none appeared for the Respondent, the appeal was kept back till today. When the appeal is called out today, none appears for the Respondent. 2 FA.573.90 2 The Appellant is the original defendant. The Respondent has filed a suit against the Appellant for removal of encroachment. It is alleged that the Respondent is the owner of the land bearing Survey No. 141, Hissa No.1 situated at Khar (East), Bandra, Mumbai. The case made out in the plaint is that in the year 1959, the Appellant committed wrongful encroachment and trespass on a portion admeasuring 30 square yards of the suit property and later on, occupied a piece of vacant land approximately admeasuring 150 square yards out of the suit property. Reliance is placed on the notice issued to the Appellant prior to the institution of the suit. 3 The Appellant contested the suit by filing written statement. One of the contentions raised was that a sketch or a plan showing the alleged encroachment was not annexed to the plaint and the encroached portion has not been described in the plaint. Various other contentions were raised. The Appellant disputed the title of the Respondent. The Appellant contended that the suit was not valued properly. The trial Court proceeded to pass a decree for possession. The operative part of which 3 FA.573.90 reads thus: “O R D E R 1. It is hereby ordered and decreed that Defendant shall vacate and deliver the possession of 150 square yards of the land to the Plaintiffs forthwith being the portion of land bearing survey No.141, hissa No.1 at Jawahar Nagar, Bhikar Mandali, East Khar, Bandra, Bombay. 2. The Defendant to pay the costs of the suit to the Plaintiff. 3. A decree be drawn up accordingly.” 4 The learned counsel appearing for the Appellant submitted that the total area of the property claimed by the Respondent was 2000 square yards out of which, it was alleged that an area of 150 square yards was encroached upon. He submitted that apart from the fact that the Respondent failed to comply with the requirements of Rule 3 of Order VII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Code”), the maps produced on record during the course of evidence do not help the Respondent-plaintiff as even the said maps do not precisely indicate the location of the alleged encroached portion. He invited attention of the Court to the cross-examination of the only witness 4 FA.573.90 examined by the Respondent and contended that even the Respondent was not sure as to which is the alleged encroached portion. He submitted that on the basis of the such vague pleadings, decree for removal of the encroachment could not have been passed. 5 I have given careful consideration to the submissions. Rule 3 of Order VII of the said Code as amended for the State with effect from 1 st October, 1983 reads thus: “3. Where the subject-mater of the suit is immovable property.- Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. High court Amendments – [Assam]. – Same as that of Calcutta. [Bombay]. - In Order VII, for the existing rule 3 and its marginal note, substitute the following as rule 3 and marginal note:– “3. Where the subject-matter of the suit is immovable property.– Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In case of encroachment a sketch showing as approximately as possible the location and extent of encroachment shall also be filed alongwith the plaint.” – (1-10-1983) 5 FA.573.90 6 It is true that when the suit was filed, the Bombay amendment was not on the statute book, which required production of a sketch showing the location and extent of the encroachment alongwith the plaint. However, Rule 3 of Order VIII as unamended required that the plaint should contain description of the property sufficient to identify it. 7 Relevant part of paragraph No.1 of the plaint reads thus: “1/- ..... In or about 1959 the defendant committed wrongful encroachment and trespass on a piece of land of the said plot No.141, Hissa No.1, admeasuring about 30 sq. yds. and constructed a small hutment thereon. Later on slowly the defendant extended this encroachment and trespass on the plaintiff's land and wrongfully occupied a piece of vacant land in all admeasuring appropriately 150 sq. yds. on the said plot No.141, Hissa No.1, situated at Bhikar Mandali, East Khar, Bandra, Bombay 55.” 8 The area of the larger property claimed by the Respondent is approximately 2000 square yards. In the entire plaint, except for setting out the area of 150 square yards of the alleged encroached portion, there is no other description of the encroached portion either with reference to any sketch or with reference to its boundaries. It will be necessary to 6 FA.573.90 make a reference to the evidence of Mr.U.G.Nayak, the Chairman of the Respondent. The question No.17 and answer given by the witness is reproduced as under: “17) Nowhere in the Plaint you had described the exact portion of the land which the Plaintiffs alleged the Defendant has been encroached upon? It was not possible to verify which portion on the land was occupied by the Defendant in view of the notorious conduct of the Defendant.” (Emphasis added) 9 Perusal of his examination-in-chief shows that in paragraph No.5 thereof, the witness stated that the Respondent – Society was in possession of area of more than 2000 square yards. In fact, in response to question No.5 asked in the cross-examination, he stated that the Society has been in absolute possession of the plot of land admeasuring 4300 square yards. 10 The map which was marked as Exhibit – H was produced by the witness in the examination-in-chief alongwith a photocopy thereof. Exhibit – H appears to be a certified copy of the map of the entire survey number on which several structures have been shown of which some 7 FA.573.90 structures have been marked in the red colour. The dimension of the area allegedly occupied by the Appellant is not mentioned on the plan. In the plaint, the averment is that initially the area of 30 square yards was occupied by the Appellant by constructing a small hutment thereon. It is alleged that thereafter, the Appellant occupied a piece of land admeasuring 150 square yards. What has been demarcated on the plan at Exhibit – I are certain structures and not the land. 11 Neither in the plaint nor in the evidence, description of the area of 150 square yards has been brought on recored, which is sufficient to identify the alleged encroached area. Thus, the case is made out by the Respondent regarding acts of encroachment committed by the Appellant is very vague. On the basis of the such vague pleadings and evidence, a decree for removal of the encroachment could not have been passed inasmuch as the area of 150 square yards on which encroachment was allegedly made by the Appellant was not at all identified. In this view of the matter, the impugned decree deserves to be quashed and set aside. 8 FA.573.90 12 Hence, I pass the following order: i. The impugned Judgment and Decree dated 26 th June, 1989 is quashed and set aside and S.C. Suit No.4131 of 1961 stand dismissed ; ii. The Appeal is accordingly allowed ; and iii. There will be no order as to costs. [ A.S.OKA, J ]