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Judgment
Gavai B.R., J.—The second appeal challenges the judgment and order dated 19th January, 2004 passed by the learned Additional District Judge, Fast Track Court (I), South Goa, Margao in Regular Civil Appeal No. 83/2002 thereby setting aside the judgment and decree passed by the learned Civil S.A. No. 24/2004 Judge, Junior Division, Margao in Regular Civil Suit No. 196/90/D dated 19th March, 2002. The facts in brief giving rise to the present appeal are as under:
The suit came to be filed by the present appellant contending therein that they are the owners in possession of property known as Predio Mixto'' or ''Mandopa'' situated at Mandopa of Nevelim village, Salcete-Goa bearing Land Registration No. 44875 of Book B New and enrolled under Land Revenue No. 915 (hereinafter referred to as the suit property"). It is the case of the plaintiff that the suit property is bounded on South by the property of the defendants. The property of the defendants is known as ''Mandopa'' and bears Land Registration No. 35290 of Book B-91 New and is bounded on the East by the property of Maria Augusta Diniz and Eduarte Carneiro, on the West by the property of Caetano Gomes and on the South by the property of Duarte Carneiro, Bernanrdo Fernandes, Hermogenes Pereira and by a strip of land bearing the same name and having width of 2 metres reserved as an access beyond which lies the property of Constantino Carneiro and Minguel Antonio Fernandes. It is the contention of the plaintiff that the property of the defendants was described in the Land Registration Office as admeasuring 5,532 square metres. It is further the case of the plaintiff that the suit property of the plaintiff and the defendants has been separated from the time immemorial by a mud-ridge, which exists at the site even today. It was contended by the plaintiff that in the recent survey a portion of the suit property has been included in the property of the defendants to the extent of about 329 square metres. The portion of the suit property which according to the plaintiff has been encroached by the defendants in the survey records is shown in pink colour in the plaint map. It is further contended by the plaintiff that the two portions are triangular in shape, one portion is shown as ''A'' having an area of 244.50 square metres and the other portion shown as ''B'' has an area of 84.50 square metres. It is the case of the plaintiff that the said areas are lying beyond the mud-ridge which actually separates the property of the plaintiff and the defendants. It was further the case of the plaintiff that according to the own admission of the defendants an area admeasuring 500 square metres was acquired for road widening about 20 years back. It is the case of the plaintiff that they noticed the discrepancy in the survey records recently in the year 1990, and brought the same to the notice of the defendants to rectify the same. It is further the case of the plaintiff that defendants have dug inside the land of the plaintiff with a view to lay foundation for the boundary wall. It is further the case of the plaintiff that the defendants further threatened the plaintiff to cut the trees from the disputed property. It was the case of the plaintiff that they could not know earlier about the discrepancy in the survey records as they were out of Goa. The plaintiff thus filed a suit claiming for a declaration that the defendants have encroached upon an area of 329 square metres over the suit property as per the plaint map and for consequential reliefs.
The defendants resisted the suit by filing written statement. It is the case of the defendants that survey was properly done and boundary lines are properly determined by survey authorities. It is specifically denied by the defendants that no portion of the defendants property has been asphalted and/or acquired. The defendants denied the plaint map. It was the case of the defendants that the trees on the ridge were always in possession of the defendants and that they enjoyed the fruits thereof. The defendants further claimed that the suit was liable to be dismissed.
The plaintiff examined himself, so also P.W. 2/Antonio Gomendes, P.W. 3/Shana Kumbe, P.W. 4/Manuel Silva, P.W. 5/Constancio Pixot, in support of his contention that the ridge was a boundary line between the suit property and the property of the defendants and that the trees along the ridge were the property of the plaintiff and the fruits were enjoyed by him. Apart from that, the plaintiff also examined P.W. 6/Raghuvir Pai, retired engineer, P.W. 7/Ernesto Moniz, Civil Engineer as expert witnesses, who had inspected the property and prepared a report.
The defendant examined himself in support of the case that the ridge was in his property and not the suit property and also examined another witness D.W. 2/Nilesh Laad, a Civil Engineer, who had inspected the suit property as well as the property of the defendants and prepared a report. The learned trial Judge framed the following issues and answered them accordingly and the suit came to be decreed:
Being aggrieved thereby the respondents preferred an appeal. The learned Appellate Court framed the following points for determination and answered them.
The appeal came to be allowed and the suit was dismissed. Being aggrieved thereby, the present appeal.
While admitting the appeal vide order dated 25th November, 2004, the following issues came to be framed:
1 Whether the lower Appellate Court could have set aside the judgment and decree dated 19.3.2002 after holding that the existence of ridge between the appellant''s property and the respondents'' property was proved?
2 Whether the lower Appellate Court acted in gross error of jurisdiction while analysing and appreciating the evidence of P.W. 1 and P.W. 6?
3 Whether the findings of the lower Appellate Court on the aspect of appellant''s possession in respect of the disputed land are perverse.
Vide order dated 5th April, 2013, the following additional substantial question of law was also formulated by this Court:
Whether, in terms of the provisions of Order XXVI, Rule 9 of CPC, 1908 and the law laid down by the Hon''ble Apex Court as well as by this Court in respect thereof, the courts below were duty bound to appoint a Commissioner to conduct inspection at loco, the suit being filed by the appellant on account of encroachment by the respondents in the property of the appellant and having failed to do so, the judgments and Decrees are liable to be quashed and set aside?
Shri P. Rao, the learned Counsel appearing for the appellant vehemently submits that the learned Appellate Court has grossly erred in reversing the well reasoned judgment of the learned trial Court. The learned Counsel submits that if the learned Appellate Court desires to reverse the finding of the trial Court it has to come to the conclusion as to how the findings of the trial Court were not correct. In support of this submission, the learned Counsel relies on the judgment of the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., . The learned Counsel further submits that in view of specific admission by the defendant in the earlier suit filed by him that an area admeasuring 500 metres has been acquired by the Government for road widening, the learned Appellate Court ought to have concurred with the finding of the trial Court, that the defendants had encroached upon the suit property.
The learned Counsel further submits that in view of the judgment of the Apex Court in the case of Haryana Waqf Board Vs. Shanti Sarup and Others, , it was necessary for the Court below to have appointed the Court Commissioner since the issue involved in the present case was pertaining to demarcation of land.
Shri Sardessai, the learned Counsel appearing on behalf of the respondents/defendants, on the contrary, submits that the learned Appellate Court has correctly allowed the appeal. He submitted that the foundation of the suit itself is totally erroneous. The learned Counsel submits that since the judgment and order passed by the learned trial Court was without considering any material, the learned Appellate Court has rightly allowed the appeal.
Though submissions have been advanced by the learned Counsel on various aspects, I find that in the facts and circumstances of the present case, it will be necessary only to consider the additional substantial question of law framed by this Court.
The perusal of the judgment of the learned trial Court would reveal that the learned trial Court on the basis of evidence that was led before it has come to the conclusion that the plaintiff had proved that the mudridge which exists separates the suit property from the property of the defendants. Finding this, the learned Trial Judge has found that the area which has been taken into possession by defendants beyond ridge is an encroachment. While arriving at such a finding the learned Trial Judge has relied on the evidence of the plaintiff so also other four witnesses to support the case. The learned Trial Judge has also relied on the evidence of two expert witnesses P.W. 6/Raghuvir Pai and P.W. 7/Ernesto Moniz, who have examined the suit property. The learned trial Judge has also relied on the exhibit P.W. 7/A, wherein it is stated that there is a mud-ridge.
The learned Appellate Court however found that there was discrepancy in the evidence of P.W. 1/Rosario Salvador Carneiro, on one hand and P.W. 6/Raghuvir Pai and P.W. 7/Ernesto Moniz, on the other hand. The learned Appellate Court found that the evidence of P.W. 2/Antonio Gomendes, P.W. 4/Manuel Silva and P.W. 5/Constancio Pixot is more concerning existence of ridge and the possessory aspect of the plaintiff over the suit property. The learned Appellate Court though on the basis of the evidence of these four witnesses finds that there exists a ridge, it has disbelieved their evidence, in so far as they state that the said ridge was the boundary line between the suit property and the property of the defendants. It is pertinent to note that the learned Appellate Court has disbelieved the evidence of experts of the plaintiff so also the expert witness of defendant. The learned Appellate Court finds that though there exists a mud-ridge between the two properties, the same cannot be considered as a boundary between the two properties.
It can thus be clearly seen that the sole question which is required to be considered in the present case is as to whether mud-ridge which exists is the dividing line between the suit property and the property of the defendants. If the answer to the same was yes then the plaintiff''s suit was liable to succeed. On the contrary, if the answer to the same was negative the said was liable to be dismissed.
For considering the rival controversy it will be appropriate to refer to Order XXVI, Rule 9 and section 75 Clause (b) of CPC which read thus:
Commissions to make local investigations.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
Section 75 Clause (b):
Power of Court to issue commissions--Subject to such conditions and limitations as may be prescribed, the Court may issue a commission-
(b) to make a local investigation;
In the case of Haryana Waqf Board (supra), an appeal was filed before Punjab High Court challenging the dismissal of second appeal in limine, wherein the High Court had dismissed the Second appeal on the ground that both the courts below had arrived at concurrent finding of fact. The Apex Court observed thus in paragraph 3 thus:
The dispute that was raised by the parties before the Court was whether the respondent had encroached upon any land belonging to the appellant Board. Therefore, it cannot be in dispute that the dispute was in respect of the encroachment of the suit land.
Admittedly, in this case, an application was filed under Order 26, Rule 9 of the CPC which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26, Rule 9 of the CPC.
I had occasion to consider the aforesaid judgment of the Apex Court and the other judgment of this Court in the case of Kolhapuri Bandu Lakade Petitioner Vs. Yallappa Chinappa Lakade, Decd., thru'' Pooja @ Poojari Y. Lakade and Others, . It will be relevant to refer to the following paragraphs of the said judgment:
Observing as aforesaid, the Apex Court set aside the judgment and order of the High Court and while setting aside the same, the Apex Court observed that the High Court ought to have considered whether in view of the nature of dispute, the Local Commissioner should be appointed for the purpose of demarcation in respect of suit land. As such the matter was remitted back to the High Court for deciding it in the light of the observations made by the Apex Court.
The learned Single Judge of this Court, F.M. Reis, J., in the case of (Girish Vasantrao Bhoyar & anr. v. Nimbaji Warluji Bombal) reported in 2009 B.C.I. (soft) 313 (N.B.) : 2009(4) Mh.L.J. 371 , has held that in order to determine whether there is an encroachment, it is always desirable to get the measurements of the land encroached upon. Another learned Single Judge of this Court, A.P. Bhangale, J., in the case of Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar, , though has not noticed the judgment of the Apex Court in the case of Haryana Waqf Board cited supra, but relying on the earlier judgment of this Court delivered by S.T. Kharche, J., in the case of Ushabai Bannore Vs. Wasudeo Mehare and Others, , has observed thus:
In Ushabai Bannore Vs. Wasudeo Mehare and Others, , this Court has held that the maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a map is accurate lies on the party who produces it. The maps must be proved by the person who has prepared them. In case of dispute of an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case overall again.
Even prior to the judgment of the Apex Court in the case of Haryana Waqf Board cited supra, the learned Single Judge of this Court, M.S. Vaidya, J., in the case of Tajmulhussain Vs. Satish Chavan, cited supra has observed thus:
9..................................... In a suit, in which the cause of action is founded on the alleged encroachment of a particular land and in which the determination of the boundary line between the two adjoining properties is the only issue, the Court could hardly decide such a matter on its own without any dependable expert assistance.
The learned Single Judge has further observed that:
It may be noted here that making of such an order for appointment of the Commissioner would not have prejudiced the interest of either of the parties, because it was only in that eventuality, that it was possible for the Court to arrive at a proper conclusion. If at all any party was aggrieved by the report given by the Commissioner so appointed by the Court, an opportunity would have become available to that party to cross-examine the Commissioner and to point out how his conclusions were not correct. The party, who was not aggrieved could also prove how his conclusions were correct.
Another learned Single Judge of this Court, namely, S.T. Kharche, J., in the case of Kashinath Chopade Vs. Purushottam Tulshiram Tekade and Others, has observed thus;
In view of the aforesaid legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and defendant for the purpose of local investigation under Order XXVI, Rule 9 of the CPC not only become relevant but appears to be absolutely essential for the just decision of the case.
It can thus clearly be seen that the Apex Court in the case of Haryana Waqf Board cited supra in unequivocal terms has held that in the case of demarcation of disputed lands, it is appropriate for the Court to direct the investigation by appointing a Local Commissioner as provided under Order XXVI, Rule 9 of the Code of Civil Procedure. The other learned Judges of this Court, namely, M.S. Vaidya, J., S.T. Kharche, J., A.P. Bhangale, J., F.M. Reis, J., have also held that in case of dispute of encroachment of a site, an appointment of Court Commissioner who could be City Survey Officer or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and defendant for the purpose of local investigation under Order XXVI, Rule 9 of the CPC would be necessary for the just decision of the case. It has also been held by this Court that merely because a Court Commissioner is appointed, it will not prejudice the interest of either of the parties. It has been held that if any of the parties is aggrieved by the report of the Court Commissioner, an opportunity would be available to that party to cross-examine the Court Commissioner and to point out as to how his conclusions were not correct. It has further been observed that the party who was not aggrieved would also prove how his conclusions are correct.
It can thus be seen that it has been consistently held by this Court that wherein a question of boundary dispute or an encroachment arises it is appropriate that the Court should exercise power under Order XXVI, Rule 9 of the Civil Procedure Code. Section 75 and specifically Clause b thereof empowers the Court to make local investigation. Rule 9 of Order XXVI enables the Court where it provides that a local investigation is requisite or proper for the purpose of elucidating any matter in dispute, to issue a commission to such person as it thinks fit to make such investigation and report thereof to the Court.
In the present case, the plaintiff as well as four witnesses had specifically deposed that there existed a ridge from time immemorial and that the said ridge was a boundary between the said property and the defendants'' land. They had also deposed that there were trees on the said ridge which were in possession of the plaintiff and the plaintiff had enjoyed the fruits thereof. This evidence of plaintiff and his four other witnesses was countered by the defendants by his evidence alone deposing that the ridge was not a boundary line. However, he also did not dispute about the existence of the ridge. Not only that the Appellate Court also found that there exists a ridge. Though the learned trial Court had believed the evidence of two experts examined by plaintiff, the learned Appellate Court disbelieved the evidence of these two witnesses as well as the expert examined by the defendants. In the peculiar facts and circumstances where the Court found that the evidence of neither of the experts was to be believed, it would have been necessary for the Court to have got done the local investigation done by appointing a Court Commissioner and calling for his report after making investigation. The report of such an independent Commissioner would have certainly enabled the Court for elucidating the matter in dispute. In any case, an appointment of the Commissioner would not have prejudiced the interest of either of the parties. If any of the parties felt aggrieved by such a report, a liberty would have been available to such a party to cross-examine the Commissioner. The party who was not aggrieved could also have proved how the investigation report was correct. In any case, it would have certainly enabled the Court to arrive at appropriate conclusion, particularly in the nature of the fact that arises for consideration in the present case.
No doubt that in the present case, application for appointment of Court Commissioner was not made. However, it is to be noted that before the learned trial Judge three experts'' reports were available. Two were in support of the plaintiffs plea and one in support of defendants'' claim. The learned Trial Judge had decreed the suit relying on the experts'' evidence. However, the Appellate Court disbelieved the experts'' evidence on behalf of the plaintiff as well as the defendants. In that view of the matter, there was no expert''s evidence available before the Appellate Court. In the circumstances, it was necessary on the part of the learned Appellate Court to remit the matter to the learned trial Court appointing an expert as a Commissioner for doing the local investigation.
In that view of the matter, I find that the appeal deserves to be allowed on the additional substantial question of law. It is held that in the facts and circumstances of the case, the courts below ought to have appointed Court Commissioner to have local investigation to find out as to whether the ridge which existed was a boundary between the suit property and the property of the defendants or not. The appeal is therefore partly allowed. Both the impugned judgment and order passed by the learned trial Court as well as the Appellate Court are quashed and set aside. The matter is remitted back to the learned trial Court with a direction to appoint a Court Commissioner preferably from the Government Department of land records to ascertain as to whether the ridge was a boundary between the suit property and the property of the defendants and after obtaining the report thereupon from the Court Commissioner, decide the suit afresh in accordance with law.