Case Note & Summary
The case involves a second appeal filed by Laxman Wamanrao Nagapure against the judgment and order dated 6.8.2012 passed by the learned District Judge-I, Akot, in Regular Civil Appeal No.25 of 2009, which dismissed the appeal arising from the decree in Regular Civil Suit No.73 of 2005. The suit was filed by Shankar Haribhau Adhau (respondent) seeking possession of an alleged encroached portion of 25R land out of Survey No.47/7-A admeasuring about 2.64R, situated at village Telhara (Bk.), Taluka Telhara, District Akola. The trial court decreed the suit, and the first appellate court confirmed the decree. The appellant, represented by Shri A.B. Mirza, contended that the plaint did not describe the disputed immovable property as required under Order VII Rule 3 of the Code of Civil Procedure, 1908 (CPC). The appellant argued that in the absence of proper description, the courts below should have directed re-measurement of the suit field and adjoining lands to ascertain the exact encroachment. The High Court framed the substantial question of law: whether the courts below were right in not directing re-measurement of the suit field and the adjoining lands by following due procedure. The High Court noted that the description of the property in the plaint was insufficient and that re-measurement was necessary to determine the encroachment. The court allowed the appeal, set aside the judgments of the lower courts, and remanded the matter to the trial court for re-measurement of the suit field and adjoining lands in accordance with law. The court directed that after re-measurement, the trial court shall decide the suit afresh.
Headnote
A) Civil Procedure - Suit for Possession - Encroachment - Order VII Rule 3 Code of Civil Procedure, 1908 - Proper Description of Property - The appellant-defendant challenged the decree for possession of alleged encroached portion of land, contending that the plaint did not describe the disputed immovable property as required under Order VII Rule 3 CPC. The High Court held that in the absence of full description, the courts below ought to have directed re-measurement of the suit field and adjoining lands to determine the exact encroachment. The appeal was allowed and the matter remanded for re-measurement. (Paras 2-5)
Issue of Consideration
Whether the Courts below were right in not directing re-measurement of the suit field and the adjoining lands, by following due procedure governing the measurements?
Final Decision
The second appeal is allowed. The impugned judgment and order dated 6.8.2012 passed by the learned District Judge-I, Akot, in Regular Civil Appeal No.25 of 2009, and the judgment and order dated 18.6.2007 passed by the learned Joint Civil Judge Junior Division, Telhara, in Regular Civil Suit No.73 of 2005, are set aside. The matter is remanded to the trial court for re-measurement of the suit field and adjoining lands in accordance with law. After re-measurement, the trial court shall decide the suit afresh. No order as to costs.
Law Points
- Order VII Rule 3 CPC
- Suit for possession
- Encroachment
- Re-measurement of land
- Proper description of immovable property
