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Judgment
F.M. Reis, J.—Heard Shri Pangam, learned Counsel appearing for the Appellants, Shri A.F. Diniz, learned Counsel appearing for the Respondent no.7 and Shri V. Rodrigues, Addl. Government Advocate appearing for the Respondent nos. 1 to 6. The above Appeal challenges the Judgment and Decree passed by the learned District Judge, North Goa, at Panaji, in Civil Suit no. 85/2006 dated 11.09.2008, whereby the suit filed by the Appellants came to be dismissed.
Briefly, the facts of the case are that the Appellants filed the suit on the ground that by Sale Deed dated 04.11.1966, the Appellant sold to the husband of the Respondent no.7 namely Shri Narayan Atma Porobo, a distinct plot admeasuring an area of 500 square metres from his property having the dimensions of 25 metres by 20 metres, which was located towards the southern western side of the property belonging to the Appellants. It is further his case that the said piece of land was purchased by the said Narayan for the construction of the house and that at the time of execution of the said Sale Deed, the Survey Records under the Land Revenue Code were not prepared. It is further his case that there was a footpath cum katcha road towards the southern side of the suit property and that the said road was depicted in the old cadastral plan bearing no. 94. It is further the contention of the Appellants that a road has been constructed more or less in alignment with the said katcha road by widening the said footpath by which a portion of the said plot of Narayan came to be covered by the said road. It is further their case that though the useable area of the plot purchased by the said Narayan had to be reduced but, however, the Appellants pointed out that they have not considered this aspect while locating the plot purchased by the said Narayan admeasuring an area of 500 square metres The said Narayan constructed a house in the said portion of the property and the house is shown in the Survey Records under no. 88/5 towards the southern side. It is further the case of the Appellants that in February, 2004, they observed that the said wife of said Narayan being Respondent no.7, with the help of the labourers had excavated the land from the suit property towards the northern side and encroached some area in the suit property beyond the area of 500 square metres. It is further their case that some illegal construction has been carried out by the said Respondent no. 7 by encroaching into the property of the Appellants and, as such, the suit came to be filed by the Appellant praying, inter alia for a mandatory injunction and for other reliefs as stated in the plaint.
The Respondent nos. 1,2,4,5 and 6 filed their written statements raising some preliminary objections but, however, did not dispute the fact that the Land Revenue Records were not prepared in the year 1966 when the Sale Deed came to be executed. It is further their contention that they have inspected the site and had found that the existing tar road was about four metres wide and the proposed width maintained is six metres. It is further their case that the Certificate was not issued to the Respondent no.7 on account of some irregularities and also pleaded the fact that no plan was attached to the said Sale Deed and that when excavation was carried out, the existing tar road was not existing.
The Respondent no.7 also filed written statement wherein they resisted the suit filed by the Appellants. It is further the case of the said Respondent no.7 that they have purchased an area of 500 square metres having dimensions from 25 metres from East to West and 20 mts. from North to South, which plot is located in the extreme West and South of the property. The Respondent no.7 also disputed the depiction carried out by Architect Phadte as, according to her, does not depict the real picture. Respondent no. 7 also disputed the existence of a footpath on the southern side and claimed that no part of her property was covered by the said road and the useable area of the suit plot was always 500 square metres. For the other reasons stated in the written statement, it is the contention of the said Respondent no. 7 that she has not encroached any portion of the property belonging to the Appellants and, consequently, submitted that the suit filed by the Appellants deserves to be rejected.
The learned Addl. District Judge, North Goa, Panaji, after framing the issues and recording of evidence by the impugned Judgment and Decree dated 11.09.2008, dismissed the suit filed by the Appellants. Whilst appreciating the evidence on record, the learned Judge has come to the conclusion that the Appellants have failed to establish that the area sold by the Appellants admeasuring 500 square metres, correspond to the depiction carried out by the Surveyor Shri D'' Cunha at Exhibit 35. The learned Judge further came to the conclusion that the Appellants failed to prove that any portion of the road constructed on the southern side of the property surveyed under no. 88/5 covered the plot purchased by the Respondent no.7. The learned Judge also came to the conclusion that the Respondent no. 7 failed to prove that the useable area of the suit plot purchased under the Deed dated 04.11.1966 at Exhibit 45, was always 500 square metres. The learned Judge also came to the conclusion that the Appellants have failed to establish that there was an encroachment carried out by the Respondent no. 7 to the extent of 60 square metres. The learned Judge, however found that the Respondent no. 7 had proved that the re-construction was carried out in accordance with the plan shown by Engineer Kiran Naik.
Being aggrieved by the said Judgment and Decree, the Appellants have preferred the present Appeal.
Shri Pangam, learned Counsel appearing for the Appellants, has pointed out that the Appellants have filed the above Misc. Civil Application under Order 26 Rule 9 of the CPC for appointment of the Commissioner to ascertain the existence of the encroachment by the Respondent no. 7 in the property of the Appellants herein.
Shri Diniz, learned Counsel appearing for the Respondent no. 7, has disputed the contentions of the learned Counsel appearing for the Appellants and pointed out that there is a plan produced by the Appellants as well as another plan produced by Respondent no. 7 in support of their rival contentions and, as such, the question of appointing a Commissioner to consider the aspect of encroachment as claimed by the Appellants, does not arise.
Shri Pangam, learned Counsel appearing for the Appellants, has assailed the impugned Judgment essentially on the ground that on perusal of the Sale Deed executed in 1966, the Respondent no. 7 has purchased only an area of 500 square metes from the suit property. The learned Counsel further pointed out that according to the Surveyor examined by the Appellants, there is an encroachment of 60 square metres by the Respondent no.7 towards the northern side of their property. Learned Counsel further pointed out that on perusal of the Sale Deed executed between the Appellants and the Respondent no.7, the souther western boundary of the suit plot is a katcha road and, according to him, the road as shown at the site as of today, can be considered to be the said katcha road as the southern western boundary of the plot sold to the Respondent no. 7. Learned Counsel further pointed out that without going into the aspect as to whether any portion of the property purchased by Respondent no. 7 was consumed by the road which was constructed subsequently towards the southern side, the Appellants accept that the Respondent no. 7 is entitled to only 500 square metres of the property surveyed under no. 88/5 of Usgao Village. Learned Counsel has further pointed out that the depiction sought to be done by Architect Kiran Naik examined by Respondent no.7, cannot be accepted on the face value as according to him, the original katcha road shown by him is totally erroneous and not in accordance with the road shown in the Survey Plan. Learned Counsel further pointed out that though no plan was attached to the Sale Deed, nevertheless, the measurement of the plot sold to the Respondent no. 7 have been clearly mentioned and that the boundaries of the plot have also been clearly defined. Learned Counsel as such submits that considering the measurements as disclosed in the Sale Deed, there is an encroachment of 60 square metres into the property of the Appellants. Learned Counsel further pointed out that taking note of the fact that there are plans produced by the Appellants and Respondent no. 7 showing contrary depictions of the plot purchased by the Respondent no.7, it would be appropriate that a Commissioner be appointed to identify the suit plot as well as the encroachment claimed by the Appellants for proper elucidation of the matter in dispute. Learned Counsel has further pointed out that it is well settled by this Court that this exercise can be allowed to be carried out in a First Appeal. In support of his submissions, the learned Counsel relied upon the Judgments of the learned Single Judge of this Court reported in 1994 (3) Bom. C.R. 371 in the case of Tajmulhussain vs. Satish 2003 (Supp.2) Bom. C.R. 329 in the case ofKisanlal Maniklal Rathi vs. Dinkar Yashwant Patil Manohar Mahadeorao Pagrut Vs. Sunanda Ramdas Tharkar, and Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar, .
On the other hand, Shri A.F. Diniz, learned Counsel appearing for the Respondent no. 7, has supported the impugned Judgment. The learned Counsel has pointed out that on going through para 6 and 7 of the plaint, it is the case of the Appellants that a portion of the plot purchased by Respondent no. 7 itself has been consumed by the road which has been constructed after the execution of the Sale Deed. Learned Counsel further pointed out that assuming the said aspect is considered, the alleged depiction sought to be done by the Appellants through the Surveyor examined by the Appellants, cannot be accepted. Learned Counsel has taken me through the plan prepared by Shri Kiran Naik and pointed out that the said Architect has rightly depicted the suit plot and has found that there is no encroachment carried out by the Respondent no. 7 in the property of the Appellants. Learned Counsel further pointed out that considering the fact that the Appellants as well as Respondent no. 7 have already produced evidence of experts, there is no reason of any appointment of a fresh Commissioner. Learned Counsel has further taken me through the Sale Deed of 1966 at Exhibit 45 and pointed out that the said Sale Deed itself stipulates that the southern boundary as well as the western boundary of the plot sold to the Respondent no. 7 is a road and, as such, unless the road is located at the site, the question of claiming that there is any encroachment in the property of the Appellants does not arise. Learned Counsel further pointed out that in case the contention of Shri Pangam, learned Counsel appearing for the Appellants, to the effect that the existing road at the site is the southern boundary as shown in the Sale Deed is to be accepted, there is no encroachment carried out by the Respondent no. 7 in the property of the Appellants. Learned Counsel further pointed out that if one accepts the existing road as the southern boundary of the plot purchased by the Respondent no. 7, the said Respondent is in possession of only 500 square metres as purchased pursuant to the said Sale Deed in the year 1966. Learned Counsel further pointed out that according to him, the Sale Deed does not state that the southern boundary of the plot sold touches the road. Learned Counsel as such submits that the learned Addl. District Judge has rightly appreciated the evidence on record and has come to the conclusion that there is no encroachment by the Respondent no. 7 in the property of the Appellants. The learned Counsel as such submits that the Appeal be rejected.
Having heard the learned Counsel and on perusal of the record, the following point for determination arises in the present Appeal :
POINT FOR DETERMINATION
Whether the Appellants have established that there is an encroachment by the Respondent no. 7 in the portion of the property surveyed under no. 88/5 ?
Before adverting to the rival contentions of the learned Counsel appearing for the respective parties, it would be appropriate to consider the application filed by the Appellants under Order 26 Rule 9 of the Civil Procedure Code. On perusal of the Judgment of the learned Single Judge passed by this Court, it has been categorically held therein that in cases of encroachment, it is always appropriate for the Court to appoint a Commissioner under Order 26 Rule 9 of the CPC to assist the Court to decide the disputed controversy. In the present case, no doubt, the Appellants and the Respondent no.7 have examined a expert, nevertheless, considering that there are diversities in plans showing the roads located on the southern side of the plot purchased by the Respondent no.7, I find it appropriate that in view of the Judgment of the learned Single Judge of this Court, referred to above an independent person should be appointed as a Commissioner so that the suit plot purchased by the Respondent no. 7 is properly identified in accordance with the Sale Deed. No doubt, the contention of Shri Pangam, learned Counsel appearing for the Appellants, to the effect that the road existing at the site can be treated to be the road as shown towards the southern side of the plot purchased by the Respondent no. 7 would also have to be taken into consideration by the Commissioner to locate the plot purchased by Respondent no. 7. It is not in dispute that at the time of the execution of the Sale Deed at Exhibit 45, the Land Revenue Code was not in force and, as such, there was no Survey Plan existing at the relevant time nor was any plan attached to the Sale Deed. It is well settled that a property can also be identified on the basis of the boundaries as mentioned in the Sale Deed and measurements mentioned therein.
This Court in the Judgment reported in 2009(4) Mh. L.J. 371, in the case of Girish Vasantrao Bhoyar vs. Nimbaji Warluji Bambal, has held at para 5 thus :
In the case of Haryana Waqf Board Vs. Shanti Sarup and Others, , the Hon''ble Apex Court has held that whenever there is a dispute of demarcation of the disputed land, it was appropriate for the Court to direct an investigation by appointing a local Commissioner under Order 26, Rule 9 of Civil Procedure Code. This Court in the case of Kashinath Chopade Vs. Purushottam Tulshiram Tekade and Others, , has held that cases of boundary dispute and dispute about the identity of the lands are instances where a Court should order a local investigation under Order 26, Rule 9 of Civil Procedure Code. In order to determine whether there is an encroachment, it is always desirable to get the measurements of the land encroached upon. Considering the said judgment of the Hon''ble Apex Court as well as the judgment of this Court, I find that there is no infirmity of any kind committed by the learned trial Judge while passing the impugned order and appointing a Commissioner for the purpose of carrying out the local investigation as ordered in the impugned order.
Considering the ration of the said Judgment, I find that for the purpose of elucidating the material on record, it is appropriate that the application under Order 26 Rule 9 of the Civil Procedure Code, be granted and a Commissioner be appointed to locate the said plot purchased pursuant to the Sale Deed at Exhibit 45 and consider whether there is an encroachment as alleged by the Appellants in their property by the Respondent no. 7. The factors mentioned herein would have to be taken into consideration by such Commissioner.
As such, the above Misc. Civil Application is to be allowed and a Commissioner be appointed to identify the suit plot in the light of the observations made herein above. At this stage, the learned Counsel appearing for the respective parties as well as the learned Addl. Government Advocate appearing for the Respondent nos. 1 to 6, have stated that considering the nature of the dispute, the Head Surveyor of the Survey Department of Panaji, be appointed as a Commissioner to carry out the said exercise of identifying the suit plot in the light of the observations made herein above. As such, I hereby appoint the Head Surveyor of the Survey Department of Panaji, as Commissioner to carry out the inspection and submit the report.
Considering the view taken by me in the Application under Order 26 Rule 9, I find it appropriate that without going into the correctness of the findings of the learned Addl. District Judge, whilst passing the impugned Judgment, it would be appropriate that the impugned Judgment passed by the learned Addl. District Judge, Panaji, be quashed and set aside and the learned District Judge be directed to decide the Civil Suit no. 85/2006 afresh after the report of the Commissioner is received and allowing the parties to lead further evidence if they so desire in accordance with law. The report of the Commissioner has to be dealt with by the Addl. District Judge, in accordance with law and allow the parties to examine the Commissioner, if they so desire. The learned Judge would thereafter reassess all the evidence on record including the evidence which has already been adduced by the respective parties and pass a fresh Judgment. In view of the above, I pass the following:
ORDER
(i) The Appeal is partly allowed.
(ii) The impugned Judgment and Decree dated 11.09.2009 is quashed and set aside. Civil Suit no. 85 of 2006 is restored to the file of the learned Addl. District Judge, North Goa, Panaji.
(iii) The Head Surveyor of the Survey Department at Panaji, is appointed as Commissioner to locate the plot belonging to the Respondent no. 7 by Sale Deed at Exhibit 45 in the light of the observations made herein above.
(iv) Costs and expenses of the Commissioner shall be borne by the Appellants and the Respondent no. 7 in equal shares.
(v) The Commissioner shall proceed after issuing notice to the Appellants and the Respondent no. 7 with that regard.
(vi)Upon receipt of the report, the learned Judge shall proceed to decide the said suit after giving an opportunity to the parties to lead further evidence or examining the Commissioner in accordance with law.
(vii) Parties are directed to appear before the learned Addl. District Judge, North Goa, Panaji, on 25.06.2012 at 10.00 a.m.
(viii)The Appeal stands disposed of accordingly with no orders as to costs.