Case Note & Summary
The appellant, Atmaram Ananda Jagrut, filed a second appeal against the judgment and order dated 14.6.2013 passed by the learned Adhoc District Judge-2, Buldana in Regular Civil Appeal No. 56 of 2010. The dispute pertained to suit land bearing survey numbers 1/1B and 1/A situated at village Hiwarkhed, Tahsil Mehkar, District Buldana. The plaintiff (respondent) had filed Regular Civil Suit No. 76 of 2006 claiming ownership and possession based on a partition dated 25.3.1976 and alleging encroachment by the defendant to the extent of 52 R on the western side. The trial court dismissed the suit, finding that the plaintiff failed to prove ownership and encroachment. On appeal, the first appellate court reversed the finding, declaring the plaintiff as owner and entitled to possession. However, recognizing the boundary dispute, the appellate court appointed the Taluqa Inspector of Land Records (TILR) as court commissioner to measure the land and finally settle the boundaries. The appellant challenged this order in second appeal, arguing that the appointment of a commissioner to collect evidence was impermissible. The High Court, relying on precedents including Kisanlal Maniklal Rathi v. Dinkar Yashwant Patil, Ashatai Warekar v. Champatrao Kale, and Vijay Shende v. State of Maharashtra, held that in boundary disputes, appointment of TILR as commissioner is proper and does not amount to collecting evidence. The court distinguished Nalubai Narayan Shinde v. Gopinath Dagdu Shinde, which dealt with possession disputes. The High Court found no substantial question of law and dismissed the second appeal, upholding the first appellate court's order.
Headnote
A) Civil Procedure - Boundary Dispute - Appointment of Court Commissioner - The first appellate court, in a boundary dispute, appointed Taluqa Inspector of Land Records (TILR) as court commissioner to measure the suit land and determine boundaries. The High Court held that such appointment is permissible and does not amount to collecting evidence but is aimed at finally settling the controversy. The second appeal was dismissed as no substantial question of law arose. (Paras 1-4)
Issue of Consideration
Whether the first appellate court was justified in appointing Taluqa Inspector of Land Records (TILR) as court commissioner to measure the suit land and settle the boundary dispute, and whether such order gives rise to a substantial question of law in second appeal.
Final Decision
The High Court dismissed the second appeal, holding that no substantial question of law arises. The order of the first appellate court appointing TILR as court commissioner was upheld.
Law Points
- Boundary dispute
- Court commissioner
- TILR
- Second appeal
- Substantial question of law
Case Details
2014 LawText (BOM) (03) 136
Second Appeal No. 400 of 2013
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Nature of Litigation
Second appeal against the judgment of the first appellate court in a civil suit involving a boundary dispute over agricultural land.
Remedy Sought
The appellant sought to set aside the order of the first appellate court appointing TILR as court commissioner for measurement of the suit land.
Filing Reason
The appellant contended that the appointment of a court commissioner to collect evidence was impermissible and that the first appellate court erred in reversing the trial court's findings.
Previous Decisions
The trial court dismissed the suit (Regular Civil Suit No. 76 of 2006) holding that the plaintiff failed to prove ownership and encroachment. The first appellate court (Regular Civil Appeal No. 56 of 2010) partly allowed the appeal, declared the plaintiff as owner, and appointed TILR as commissioner to measure the land and settle boundaries.
Issues
Whether the first appellate court was justified in appointing TILR as court commissioner to measure the suit land in a boundary dispute.
Whether such appointment gives rise to a substantial question of law warranting interference in second appeal.
Submissions/Arguments
The appellant argued that the appointment of a court commissioner to collect evidence is not permissible and that the first appellate court erred in reversing the trial court's findings.
The respondent supported the first appellate court's order, contending that in boundary disputes, appointment of TILR is necessary to finally determine the controversy.
Ratio Decidendi
In boundary disputes, appointment of Taluqa Inspector of Land Records (TILR) as court commissioner for measurement of the suit land is permissible and does not amount to collecting evidence. Such appointment is aimed at finally and conclusively settling the boundary dispute. No substantial question of law arises in second appeal against such an order.
Judgment Excerpts
In such cases, when there is a boundary dispute or dispute about identity about the suit property, this Court has time and again considered necessity to appoint TILR or DILR concerned as court commissioner and to take measurement of the disputed land so that factum of encroachment, if any, is brought to the notice of the court by properly drawn measurement map so as to conclusively and finally determine the real controversy between the parties.
The objection raised that Court Commissioner cannot be appointed for to collect evidence to investigate as to who is in possession of suit field/premises, was upheld in Nalubai Narayan Shinde v. Gopinath Dagdu Shinde ... in the light of different facts.
Procedural History
The plaintiff filed Regular Civil Suit No. 76 of 2006 which was dismissed by the trial court. The plaintiff appealed to the first appellate court in Regular Civil Appeal No. 56 of 2010, which partly allowed the appeal and appointed TILR as commissioner. The defendant filed Second Appeal No. 400 of 2013 in the High Court against that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 9
