Maruti & Ors. vs Gangadhar

The Petitioners have preferred the present petition challenging the order dated 02.01.2008 rendered by the learned Civil Judge Junior Division, Rahuri, allowing the application presented by the Respondent and directed the Court Commissioner to carry out a fresh local investigation and land measurement.

Regular Civil Suit No. 212/2004, instituted by the Respondent against the present Petitioners seeking a decree of perpetual injunction to restrain from encroaching upon his land. Both sides claim lawful possession over the respective shares of the suit property based on a previous decree passed in Regular Civil Suit No. 1269/1991. During the pendency of the suit, the Respondent presented an application at Exhibit-16 for the appointment of a Court Commissioner to fix boundaries. The said application was allowed. The Commissioner subsequently conducted a measurement in the presence of both parties and submitted a map and report.

Aggrieved by the report, the Respondent contended that the Commissioner failed to measure the land according to the terms of the court's order. The Respondent consequently presented an application at Exhibit-28 requesting to order a fresh commission to execute the local investigation. The learned Trial Court observed that the map prepared by the Commissioner was at variance with the directions issued by its predecessor, and therefore, allowed the application. Being aggrieved, petitioners approached this Court.

The learned counsel for the Petitioners submitted that the measurement was done in the presence of both sides and that the Respondent cannot seek a fresh measurement merely because the findings do not suit convenience. The counsel further submitted that the Trial Court committed a serious error under Order XXVI Rule 9 of the Code of Civil Procedure by ordering a fresh investigation without first recording cogent reasons to reject the initial report.

Per contra, the learned counsel for Respondent supported the order under challenge submitting that the Trial Court maintains the necessary discretionary authority to command a fresh survey when the existing records are found to be confusing.

Upon considering the submissions of the learned counsel for the litigating sides and perusing the material on record, it is evident that the decree rendered in Regular Civil Suit No. 1269/1991 was for partition and the same has attained finality. In order to seek its proper implementation, the subsequent suit was presented considering the decree which is already in force. In the said suit, the application for the appointment of a Court Commissioner was presented for the purpose of carrying out a measurement, fixing the boundaries occurring on the spot land, and preparing a situational map.

The Trial Court directed this exercise to be undertaken with a further instruction to submit a detailed report along with the map. Admittedly, having noted a variance in the report and map subsequently presented by the Commissioner, the Respondent was compelled to present a subsequent application at Exhibit-28, which the Trial Court eventually allowed.

It is a well-settled position that when a question arises as to boundary disputes and encroachments under these peculiar facts and circumstances, it is essential that a Surveyor be appointed. Furthermore, the report generated by such an expert must be in conformity with the decree that has already been passed by the court of competent jurisdiction.

Having noted the variance and non-compliance in the first survey, the Trial Court was justified while allowing the application, directing the appointment of a fresh Commissioner, and ordering the measurement of the land in accordance with the final decree passed in Regular Civil Suit No. 1269/1991. The mandate of the Commission remains to fix the boundary marks and to prepare and submit a actual report along with the ground map. In that view of the matter, I find no error or perversity in the order rendered by the Trial Court.

Consequently, the Trial Court rightly exercised its discretion to facilitate a fair adjudication of the dispute between the parties in the process of implementation of decree. Therefore, no interference is warranted under the supervisory jurisdiction of this Court.

The Writ Petition sans merits and the same is dismissed. However, no order as to costs.

Rule stands discharged.

Resultantly, pending civil application also stands disposed of.