Matadin Surajmal Rajoria (Deceased) Through Sole Legatee Lalita Satyanarayan Khandelwal vs Ramdwar Mahavir Pande (Dead) Thr. Lrs. & Ors.

CIVIL APPEAL NO. 5847 OF 2021 (Arising out of SLP (C) No.33865 OF 2018)

MATADIN SURAJMAL RAJORIA (DECEASED) THROUGH SOLE LEGATEE LALITA SATYANARAYAN KHANDELAWAL APPELLANT(S) (Plaintiff)

VERSUS

RAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. & ORS. RESPONDENT(S) (Defendants)

J U D G M E N T

Hrishikesh Roy, J.

1. Heard Mr. S. Niranjan Reddy, learned senior counsel

for the appellant. The respondents(defendants) are

represented by Mr. V.K. Shukla, learned senior counsel.

2. Signature Not Verified Leave granted. The appellant now (represented by Digitally signed by Rajni Mukhi Date: 2021.09.21

his daughter) filed the Civil Suit No.332/2003 alleging 16:09:15 IST Reason:

encroachment by the two defendants namely Ramdwar 1 Mahavir Pande and Sudamadevi Pande. The plaintiff’s

contention in the Suit was that on 28.12.1995, he had

purchased land (measuring 1 Hectre 62 Acres) from

Survey No.25 within the municipal limits of Amravati,

for consideration of Rs.2,10,000/. The sale deed

(Exhibit 47) was executed through the plaintiff’s

registered Power of Attorney holder and it was

specified therein that a portion of the purchased

land is encroached by Radhwar Pande and Sudamadevi

Pande. According to the plaintiff, he measured his

land on 23.11.2002 and learnt that the defendant no.1

had committed encroachment to the extent of 35 R from

the Southern side while the defendant no.2 (related to

the defendant no.1), had encroached about 3 R land from

the same Southern side of his land. Both defendants

were asked to remove their encroachment by the

plaintiff and his daughter but the defendants did not

budge. Accordingly, the Suit came to be filed for

declaration, injunction and possession.

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3. In the written statement, the defendant no.1

claimed title over his occupied area on the basis of

sale deed dated 17.04.1969(Exbt. 66) executed by

one Vitthalrao Nanwatkar. Likewise, the defendant

no.2 claimed title over her occupied area, on the

strength of the sale deed dated 02.11.1977(Art.A),

executed by one Shantabai Jaiswal. The defendants

additionally contended that, M/s Edulji Dotimal Ginning

and Pressing Factory Ltd. earlier filed the Civil Suit

No.413 of 1979 against the defendant no.1 Ramdwar

Mahavir Pande for removal of alleged encroachment to

the extent of 7798 square feet. But the said Suit by

M/s Edulji Dotimal was dismissed and the defendants

continued in uninterrupted possession.

4. The Trial Court on the basis of the evidence and

the pleadings, dismissed the suit on 1.9.2008 with the

finding that plaintiff has failed to prove that the

defendants have encroached on his land and accordingly

relief was denied to the plaintiff. The basis for the

3 verdict favouring the defendants was because at the

time of purchase, the plaintiff was having knowledge

that some portions of the purchased land were in

possession of two defendants since 1969. The learned

trial Judge noted in the judgment that the plaintiff

failed to annexe any sketch map indicating the

projected encroachment by the defendants. On relief

being refused, the plaintiff filed the Civil Appeal

No.199 of 2008 but the learned Appellate Court endorsed

the Trial Court’s decree, favouring the defendants. The

Court noted that the defendants are residing and are

possessing the disputed area, with the permission of

predecessor in title of the plaintiff and therefore,

they cannot be categorized as encroachers.

5. The above lead to the Second Appeal No.297 of 2013

by the plaintiff. The High Court in the said

proceedings felt the necessity to appoint a surveyor to

measure the suit property, as described in the

respective sale deeds relied by the contesting

litigants. By order dated 7.6.2016, High Court has

4 called for a finding through Trial Court, on the

allegation of Encroachment made by the defendants,

after carrying out measurement on the basis of sale

deeds (Exhibits 47,66), whereafter one Amol Giri was

appointed as the Surveyor/Court Commissioner for joint

measurement of the suit property. The Court

Commissioner visited the site on 28.11.2016 in Survey

no. 25/4 in Village Mhasala and prepared the

measurement map (Exhibit 131), in presence of the

parties. The surveyor was examined before the Court on

5.7.2017 and on his cross-examination, the following

was elicited:

“….It is correct to say that, according to the map, remaining 38 Are land is in possession of Sudamadevi. 1 Are land means 1076 Sq. Ft. 38 Are agricultural land means 40888 Sq. Ft area. As per sale deed at Exh.66, Sudamadevi Pande is owner of 2000 Sq. FT. The land highlighted with Green colour in the map is in possession of Sudamadevi Pande. The land in pink colour towards northern side of the map adjacent to NMLK letters if measured from green coloured land it comes to 2000 Sq. Ft. Similarly, if the lower side of the said colour if joined to green line towards western side, it will come to 2000 Sq. Ft. It appearsthat, the land in Map at Exh. 31 towards southern side of the land shown in pink colour at the northern side

5 is encroached land. The six persons shown in the Map Exh. 31 were present at the time of measurement.”

6. The High Court, on being informed of the conclusion

of the survey exercise, on 22.2.2018 ordered the

Appellate Court to certify the 7.6.2016 findings on the

encroachment recorded by the Trial Court, in terms of

Rule 470 of the Civil Manual. Both parties were

directed to present themselves before the Appellate

Court for the ordered exercise. Following such

direction, the first Appellate Court considered the

matter and vide its order dated 10.04.2018, reversed

the findings of the Trial Court and held that, as per

the map prepared by the Court Commissioner, the

defendants had committed encroachment to an extent of

land measuring 38 R (40888 square feet). In view of

such development, on 2.5.2018 the High Court framed the

following substantial question of law for the decision

in the Second Appeal:-

“Whether in the face of order dated 10.04.2018 passed by the appellate Court in pursuance of direction of this Court for appointment of

6 Surveyor and carrying out measurement in the present case, the concurrent findings rendered by the two Courts below are sustainable?”

7. The plaintiff’s second appeal was however dismissed

and accordingly the impugned judgment favouring the

defendants is challenged in this appeal.

8. The learned Senior Counsel for the appellant Mr. S.

Niranjan Reddy submits that the High Court failed to

appropriately consider the measurement map (Exhibit

131) and the deposition of the Court appointed Surveyor

and thereby rendered an erroneous finding which

overlooks the encroachment by the respondents-

defendants. According to the appellant the recital in

the plaintiff’s sale deed dated 28.12.1995 (Exhibit 47)

was misconstrued by the Court. It is also the say of

the counsel that the Court should have weighed the fact

that the defendants claim on the basis of the

respective sale deeds (dated 17.04.1969 and 2.11.1977)

mismatch with the land under defendants occupation. The

area occupied measure 38R (40,888 sq. ft.) whereas this

7 is not compatible with the extent of land mentioned in

the sale deeds relied by the defendants. As such, it is

argued that due credence should have been given to the

finding of the Court’s Surveyor that the defendants are

in illegal possession of excess land.

9. On the other hand, Mr. V.K. Shukla, learned Senior

Counsel refers to the concurrent findings in favour of

the defendants by the Trial Court, the Appellate Court

and the High Court and argues that the appeal in the

present facts, is not to be entertained by this Court.

For the defendants, the counsel refers to the

plaintiff’s sale deed (Exhibit 47) to point out that

the sale deed itself specifically mentioned the area

under occupation of the two defendants in the land

purchased by the plaintiff. It is therefore argued

that the plaintiff on the basis of the sale deed

(Exhibit 47) can have no legitimate claim on the areas

under occupation of the defendants since before the

sale transaction of the plaintiff.

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10. The contention advanced by the rival counsel

have been considered. While concurrent findings of

Courts below are not to be routinely interfered, it is

seen that there was a second round in the litigation

and another substantial question of law was formulated

by the High Court for adjudication of the second

appeal. However, no specific finding on such question

of law was ever recorded in the impugned judgment. The

learned Judge skirted the issue and instead endorsed

the findings of the courts below to the effect that the

defendants had not made any encroachment, after the

plaintiff purchased the land on 28.12.1995 under the

Exhibit 47 Sale deed. The conclusion in the second

appeal was therefore devoid of any independent finding

on the substantial question of law formulated by the

Court itself on 2.5.2018. With the required finding on

the additional issue, a contrary conclusion favouring

the other side, can’t entirely be ruled out in the

second appeal. This is particularly possible because

of the mismatch between the area under occupation of

9 the defendants and the smaller area covered in their

two sale deeds. The aspect of defendants occupation of

certain lands, being mentioned in the plaintiff’s sale

deed, must also weigh with the Court, in view of the

fresh evidence generated by the court appointed

surveyor.

11. The above has persuaded us to hold that the High

Court erred in not recording a finding on the question

of law formulated later, to account for the Court

Surveyor’s report, vis-à-vis the legal battle over the

suit land. Without the decision on the relevant aspect

which goes to the root of the dispute, the impugned

judgment in our assessment, fails the scrutiny of law.

12. In view of the forgoing, we set aside the judgment

dated 14.8.2018 passed by the Bombay High Court, Nagpur

Bench in the Second Appeal no.297/2013. The matter is

remanded back to the High Court to consider and render

a finding on the substantial question of law framed on

2.5.2018 by the learned Judge. It is ordered

accordingly. Regard being had for the long pendency

10 for the case and the restricted remand, the High Court

is requested to decide the second appeal expeditiously

and preferably within six months of receipt of this

order.

13. The appeal is accordingly allowed without any order

on costs.

………………………………………………………J. [R. SUBHASH REDDY]

………………………………………………………J. [HRISHIKESH ROY] NEW DELHI SEPTEMBER 21, 2021

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