Case Note & Summary
The appellant, Tulsabai, was the original plaintiff who filed a suit for possession after removing encroachment allegedly committed by the respondents/defendants on her field Survey Nos. 22 and 25. She claimed ownership and that the defendants had constructed huts encroaching upon 0.05 R of her land. A measurement was conducted by the Taluka Inspector of Land Records (TILR) which confirmed the encroachment. The trial court and the first appellate court dismissed the suit, discarding the survey evidence on the ground that notice of the survey was not given to the defendants. The plaintiff filed a second appeal before the Bombay High Court. The High Court framed three substantial questions of law: whether the courts below were justified in ignoring the TILR Surveyor's testimony and survey maps when the evidence of notice was unchallenged; whether they overlooked the certified copy of Map Kprat showing encroachment; and whether the lower appellate court erred in rejecting the application under Order XXVI Rule 9 CPC for appointment of a Court Commissioner. The High Court noted that the plaintiff and surveyor had stated in their unchallenged evidence that notices were given to the defendants. However, to avoid any prejudice and to do complete justice, the High Court set aside the judgments of the courts below and remanded the suit to the trial court with a direction to appoint a Court Commissioner to measure the disputed land and then decide the suit afresh after considering the Commissioner's report. The second appeal was allowed accordingly.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order XXVI Rule 9 CPC - Remand - The lower appellate court erred in rejecting the appellant's application for appointment of a Court Commissioner to measure the disputed land, especially when the survey evidence was discarded on technical grounds. The High Court held that to do complete justice, a Court Commissioner should be appointed to measure the land and the suit should be decided afresh after considering the Commissioner's report. (Paras 4-6) B) Evidence - Survey Evidence - Appreciation - The courts below were not justified in discarding the cogent testimony of the TILR Surveyor and the survey maps (Map Aprat, Map Kprat) solely on the ground that notice of survey was not given to the defendants, when the plaintiff and surveyor's unchallenged evidence stated that notices were given. However, to avoid any prejudice, the High Court directed fresh measurement by a Court Commissioner. (Paras 4-6)
Issue of Consideration
Whether the courts below were justified in discarding the testimony of the TILR Surveyor and the survey maps on the ground of lack of notice to defendants, and whether the lower appellate court erred in rejecting the application for appointment of a Court Commissioner under Order XXVI Rule 9 CPC.
Final Decision
Second appeal allowed. Judgments of the trial court and first appellate court set aside. The suit is remanded to the trial court with a direction to appoint a Court Commissioner to measure the disputed land and then decide the suit afresh after considering the Commissioner's report.
Law Points
- Appreciation of survey evidence
- Appointment of Court Commissioner
- Order XXVI Rule 9 CPC
- Remand for fresh measurement
