Case: MATADIN SURAJMAL RAJORIA (DECEASED) THROUGH SOLE LEGATEE LALITA SATYANARAYAN KHANDELAWAL Vs. RAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. &amp; ORS

made by the defendants, after carrying out measurement on the basis of sale deeds (Exhibits 47,66), whereafter one Amol Giri was appointed as the Surveyor/Court Commissioner for joint measurement of the suit property. The Court Commissioner visited the site on 28.11.2016 in Survey no. 25/4 in Village Mhasala and prepared the measurement map (Exhibit 131), in presence of the parties. The surveyor was examined before the Court on 5.7.2017 and on his cross-examination, the following was elicited: ….It is correct to say that, according to the map, remaining 38 Are land is in possession of Sudamadevi. 1 Are land means 1076 Sq. Ft. 38 Are agricultural land means 40888 Sq. Ft area. As per sale deed at Exh.66, Sudamadevi Pande is owner of 2000 Sq. FT. The land highlighted with Green colour in the map is in possession of Sudamadevi Pande. The land in pink colour towards northern side of the map adjacent to NMLK letters if measured from green coloured land it comes to 2000 Sq. Ft. Similarly, if the lower side of the said colour if joined to green line towards western side, it will come to 2000 Sq. Ft. It appearsthat, the land in Map at Exh. 31 towards southern side of the land shown in pink colour at the northern side is encroached land. The six persons shown in the Map Exh. 31 were present at the time of measurement. 6. The High Court, on being informed of the conclusion of the survey exercise, on 22.2.2018 ordered the Appellate Court to certify the 7.6.2016 findings on the encroachment recorded by the Trial Court, in terms of Rule 470 of the Civil Manual. Both parties were directed to present themselves before the Appellate Court for the ordered exercise. Following such direction, the first Appellate Court considered the matter and vide its order dated 10.04.2018, reversed the findings of the Trial Court and held that, as per the map prepared by the Court Commissioner, the defendants had committed encroachment to an extent of land measuring 38 R (40888 square feet). In view of such development, on 2.5.2018 the High Court framed the following substantial question of law for the decision in the Second Appeal:- Whether in the face of order dated 10.04.2018 passed by the appellate Court in pursuance of direction of this Court for appointment of Surveyor and carrying out measurement in the present case, the concurrent findings rendered by the two Courts below are sustainable? 7. The plaintiffs second appeal was however dismissed and accordingly the impugned judgment favouring the defendants is challenged in this appeal. 8. The learned Senior Counsel for the appellant Mr. S. Niranjan Reddy submits that the High Court failed to appropriately consider the measurement map (Exhibit 131) and the deposition of the Court appointed Surveyor and thereby rendered an erroneous finding which overlooks the encroachment by the respondentsdefendants. According to the appellant the recital in the plaintiffs sale deed dated 28.12.1995 (Exhibit 47) was misconstrued by the Court. It is also the say of the counsel that the Court should have weighed the fact that the defendants claim on the basis of the respective sale deeds (dated 17.04.1969 and 2.11.1977) mismatch with the land under defendants occupation. The area occupied measure 38R (40,888 sq. ft.) whereas this is not compatible with the extent of land mentioned in the sale deeds relied by the defendants. As such, it is argued that due credence should have been given to the finding of the Courts Surveyor that the defendants are in illegal possession of excess land. 9. On the other hand, Mr. V.K. Shukla, learned Senior Counsel refers to the concurrent findings in favour of the defendants by the Trial Court, the Appellate Court and the High Court and argues that the appeal in the present facts, is not to be entertained by this Court. For the defendants, the counsel refers to the plaintiffs sale deed (Exhibit 47) to point out that the sale deed itself specifically mentioned the area under occupation of the two defendants in the land purchased by the plaintiff. It is therefore argued that the plaintiff on the basis of the sale deed (Exhibit 47) can have no legitimate claim on the areas under occupation of the defendants since before the sale transaction of the plaintiff. 10. The contention advanced by the rival counsel have been considered. While concurrent findings of Courts below are not to be routinely interfered, it is seen that there was a second round in the litigation and another substantial question of law was formulated by the High Court for adjudication of the second appeal. However, no specific finding on such question of law was ever recorded in the impugned judgment. The learned Judge skirted the issue and instead endorsed the findings of the courts below to the effect that the defendants had not made any encroachment, after the plaintiff purchased the land on 28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the second appeal was therefore devoid of any independent finding on the substantial question of law formulated by the Court itself on 2.5.2018. With the required finding on the additional issue, a contrary conclusion favouring the other side, cant entirely be ruled out in the second appeal. This is particularly possible because of the mismatch between the area under occupation of the defendants and the smaller area covered in their two sale deeds. The aspect of defendants occupation of certain lands, being mentioned in the plaintiffs sale deed, must also weigh with the Court, in view of the fresh evidence generated by the court appointed surveyor. 11. The above has persuaded us to hold that the High Court erred in not recording a finding on the question of law formulated later, to account for the Court Surveyors report, vis-à-vis the legal battle over the suit land. Without the decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. The contention advanced by the rival counsel have been considered. While concurrent findings of Courts below are not to be routinely interfered, it is seen that there was a second round in the litigation and another substantial question of law was formulated by the High Court for adjudication of the second appeal. However, no specific finding on such question of law was ever recorded in the impugned judgment. The learned Judge skirted the issue and instead endorsed the findings of the courts below to the effect that the defendants had not made any encroachment, after the plaintiff purchased the land on 28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the second appeal was therefore devoid of any independent finding on the substantial question of law formulated by the Court itself on 2.5.2018. With the required finding on the additional issue, a contrary conclusion favouring the other side, cant entirely be ruled out in the second appeal. This is particularly possible because of the mismatch between the area under occupation of the defendants and the smaller area covered in their two sale deeds. The aspect of defendants occupation of certain lands, being mentioned in the plaintiffs sale deed, must also weigh with the Court, in view of the fresh evidence generated by the court appointed surveyor.11. The above has persuaded us to hold that the High Court erred in not recording a finding on the question of law formulated later, to account for the Court Surveyors report, vis-à-vis the legal battle over the suit land. Without the decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law.