Case Note & Summary
The case involves a second appeal arising from a judgment and order dated 8.10.1999 passed by the Additional District Judge, Washim in Regular Civil Appeal No.40 of 1997, which itself arose from a judgment and order dated 20.3.1997 in Regular Civil Suit No.84 of 1992 by the Joint Civil Judge (Jr.Dn.), Mangrulpir. The dispute concerns alleged encroachment by defendants Ashok Ambadas Gawande and Vithal Dalpat Patil (original defendants) on agricultural land belonging to the appellant Manikrao Ramji Chawake. The appellant filed the suit for recovery of the encroached portion. The High Court, while admitting the second appeal, framed a substantial question of law: whether it is essential to get a map of the disputed agricultural land prepared by a Court Commissioner as directed by an earlier order dated 11.11.2003. The Court answered in the affirmative, holding that in boundary disputes where parties do not agree on existing maps, the trial or first appellate court must appoint a competent Cadastral Surveyor as Court Commissioner to prepare an authentic measurement map. This ensures meaningful assistance to the court and facilitates execution of the decree, setting the real controversy at rest. The Court allowed the appeal, set aside the impugned judgments, and remanded the matter to the trial court for fresh disposal after appointment of a Court Commissioner to prepare a map.
Headnote
A) Civil Procedure - Boundary Dispute - Court Commissioner's Map - In cases where dispute is as to boundaries or boundary marks of immovable property and parties do not agree to any map on record, it is essential for the trial Court or first Appellate Court to appoint a competent Cadastral Surveyor as Court Commissioner to prepare a measurement map to assist in execution of decree. (Paras 2-3)
Issue of Consideration
Whether it is essential to get the map in respect of the disputed agricultural land prepared by the Court Commissioner as directed by this Court vide order dt.11.11.2003?
Final Decision
Second Appeal allowed. Impugned judgments and orders set aside. Matter remanded to the trial court for fresh disposal after appointment of a Court Commissioner to prepare a map of the disputed land.
Law Points
- Court Commissioner map essential in boundary disputes
- Cadastral Surveyor appointment
- Execution of decree facilitated by authentic map
Case Details
2014 LawText (BOM) (02) 199
Second Appeal No.60 of 2000
Mr. A.S. Joshi for the Appellant, Mr. S.M. Doifode for Respondent No.1
Ashok Ambadas Gawande and Vithal Dalpat Patil
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Nature of Litigation
Second appeal against judgment in regular civil appeal arising from suit for recovery of encroached portion of agricultural land.
Remedy Sought
Appellant sought recovery of encroached portion of agricultural land from respondents.
Filing Reason
Alleged encroachment by defendants on plaintiff's agricultural land.
Previous Decisions
Regular Civil Suit No.84 of 1992 decided on 20.3.1997 by Joint Civil Judge (Jr.Dn.), Mangrulpir; Regular Civil Appeal No.40 of 1997 decided on 8.10.1999 by Additional District Judge, Washim.
Issues
Whether it is essential to get the map in respect of the disputed agricultural land prepared by the Court Commissioner as directed by this Court vide order dt.11.11.2003?
Ratio Decidendi
In boundary disputes where parties do not agree on existing maps, it is essential for the trial or first appellate court to appoint a competent Cadastral Surveyor as Court Commissioner to prepare an authentic measurement map to assist in execution of decree.
Judgment Excerpts
Whether it is essential to get the map in respect of the disputed agricultural land prepared by the Court Commissioner as directed by this Court vide order dt.11.11.2003 ?
My answer to the above question is in the affirmative as in the cases where dispute is as to boundaries or boundarymarks of the immovable property and when parties do not agree to any map produced on the record, it becomes essential for the trial Court or the first Appellate Court as final Court on finding of facts to ensure that a competent Cadestral Surveyor is appointed as the Court Commissioner to prepare measurement map in respect of the suit properties so that after receiving authentic map or plan from the competent Official on behalf of the State Government, the trial Court is assisted meaningfully with a view to execute the decree that may be passed.
Procedural History
Regular Civil Suit No.84 of 1992 filed by appellant, decided on 20.3.1997 by Joint Civil Judge (Jr.Dn.), Mangrulpir. Appeal against that decree was Regular Civil Appeal No.40 of 1997, decided on 8.10.1999 by Additional District Judge, Washim. Second Appeal No.60 of 2000 filed in High Court, admitted on 11.11.2003 with appointment of Court Commissioner. Final judgment on 14.2.2014.
Acts & Sections
- Code of Civil Procedure, 1908:
