1. This second appeal arises out of the judgment and decree dated 25.3.1988 passed by the appellate Court in Reg. Civil Appeal No. 168 of 1983 dismissing the appeal as well as the cross-objections and confirming the judgment and decree passed by the trial Court on 31-10-1983 in Reg. Civil Suit No. 312 of 1979, by which the trial Court allowed the suit of the plaintiff for possession partly and directed the original defendant/appellant to deliver the vacant possession of plot No. 94/1 as shown by letters K, Kh, G, Gh, ch, chh, Dh, D, Te, K in the map Ex. 84 with costs.
2. Brief facts are as under:
The property bearing plot Nos. 93 and 94 situated in Ward No. 3 at Jatpura, Block No. 60 recorded in the revenue records originally belonged to two brothers Lahu Walke and Bhiwa Walke. Parwati is the widow of Lahu and Wanmala is his daughter. Sumitra is the daughter of Bhiwa. Plot No. 94 was shown as one unit but in the revenue map of the said plot, two sub divisions, such as Plot No. 94/1 and 94/2 were shown, but it is not known as to how these subdivisions were made in the revenue map. The widow Parwatabai and daughter Wanmala of Lahu as well as Sumitra, daughter of Bhiwa, sold plot Nos. 93 and 94 for a consideration of Rs. 4,000/- to the original plaintiff by virtue of the registered sale-deed dated 18-10-1978. As the original plaintiff died during the pendency of this appeal, his legal heirs have been brought on record. Plots No. 93 and 94 are situated towards the southern side of plot No. 73 owned by the defendant. The area of plot No. 93 is 195 sq.ft whereas the total area of plot No. 94 is 1073 sq.ft Plot No. 94 was divided into two parts. Plot No. 94/1 is admeasuring 825 sq.ft whereas plot No. 94/2 is admeasuring 248 sq.ft It is contended by the plaintiff that the defendant has made encroachment on his plot No. 94 to the extent of 66.9 sq.ft as shown in the map annexed with the plan. It is further contended that the defendant during the pendency of the suit is said to have made encroachment to the extent of 526 sq.ft by constructing a shed and by using the open space of Plot Nos. 94/1 & 94/2 as shown in the map (Ex. 84). The defendant was, therefore, called upon to deliver the possession and notice dated 30-7-1979 was served on him, but in vain. Therefore, the plaintiff was constrained to file a suit for possession of the area under encroachment to the extent of 66.9 sq.ft and 526 sq.ft, as stated above.
3. The defendant combated the claim of the plaintiff by filing written statement and contended that Bhiwa had sold the plot No. 94/2 admeasuring 280 sq.ft to his father by virtue of registered sale-deed dated 25-7-1942 and the defendant is the owner of this much area. It is further contended that the father of the defendant was in possession and after his death his sons were in possession of the area admeasuring 376 sq.ft out of Plot No. 94/1 since the year 1942 and, therefore, the defendant has perfected his title by adverse possession.
4. The trial Court on appreciation of evidence negatived the contention of the defendant that he has perfected his title to the area of 376 sq.ft by adverse possession and consequently decreed the suit partly and directed the defendant to deliver vacant possession of plot No. 94/1 as shown by letters K, Kh, G, Gh, Ch, Chh, Dh, D, Te, K in the map Ex. 84 which formed part of the decree. The appeal was carried by the defendant to the District Court. The deceased plaintiff also filed cross-objections. The appellate Court on appreciation of the evidence adduced by both the parties and on consideration of the law position, confirmed the finding of the trial Court that the defendant has failed to establish that he became owner of the area under encroachment by adverse possession. The appellate Court also confirmed the finding of the trial Court so far as the decree in relation to delivery of possession of plot No. 94/1 in the map Ex. 84 by the defendant is concerned and dismissed the appeal as well as the cross-objections. This is how the original defendant is before this Court in this second appeal.
5. Mr. Lambat, learned counsel, for the appellant vehemently argued that admittedly the map (Ex. 84) was prepared by the private surveyor Dadaji Narayan (P.W 4) and it was prepared for the purpose of the cause. He fairly conceded that another map (Ex. 102) has also been drawn by the private surveyor Dadaji Marotrao (D.W 2) by taking measurements on 10-10-1982 and both the maps are inadmissible in evidence under section 83 of the Indian Evidence Act, 1882 to show as to what was the precise and concise area under encroachment. Therefore, this is a fit case which deserves to be remanded to the trial Court for taking joint measurements by appointing the City Surveyor as Commissioner under Order 26, Rule 9 of the Code of Civil Procedure.
6. None appeared for the legal heirs of the respondent/plaintiff though duly served.
7. I have given thoughtful consideration to the contentions canvassed by the learned counsel for the defendant. At this juncture, it is necessary to reproduce section 83 of Evidence Act which lays down that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. were so made and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate.
(emphasis supplied)
8. The analysis of the aforesaid section would show that the words employed, “but maps or plans made for the purpose of any cause must be proved to be accurate” would clearly “indicate that the maps or plans made for the purpose of any cause must be proved to be accurate and no presumption of law can be drawn that those maps or plans are accurate which are prepared at the instance of the parties for the purpose of the cause. ‘The onus of proving that such a map is accurate lies on the party who produced it. The maps must be proved by the person who has prepared them. They are post litem motesa and lack necessary trustworthiness. Where the maps are made for the purpose of a suit there is, even apart from fraud which may exist, a tendency to colour, exaggerate and favour which can only be counteracted by swearing the maker to the truth of his plan. Hence, there is no presumption of accuracy in respect of the map or plan which is made for a particular cause and it goes without saying that a map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. In any case, in which there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and/or subsequent reference in the pleadings or judgment to place the mark on a map should be referred to this map which must be attached to the decree and signed by the Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case all over again. The map should be drawn with the North at the top and letters marking points should not be put in side ways or upside down.
9. I may usefully refer the decision of our High Court in Civil Revision No. 406 of 1952 decided on 28-1-1953 by Justice B.K Choudhari (as he then was) in Krishnarao v. Mahadeorao, 1953 NLJ Note 230 at page 72 wherein it has been observed as under:
“3. The trial Court rejected the application stating that the question of encroachment by the defendant on a particular date is to be proved by positive evidence by the plaintiff and, therefore, it did not think it desirable to appoint a commissioner. It is against this order that the plaintiff has come up in revision.
4. Order 26, Rule 9, of the Civil Procedure Code is as follows:
“In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court”.
5. Under the above rule, the Court has a discretion to order local investigation or not. The object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. Cases of boundary disputes and disputes about the identity of lands are instances when a Court should order a local investigation under this rule. [Po Gyi v. Maung Paw (12 I.C 347)]”.
6. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the exact area encroached upon. Oral evidence cannot conclusively prove such an issue. The order of the lower Court refusing to appoint a commissioner amounted to a refusal to exercise jurisdiction. It is set aside. The plaintiff's application under Order 26, Rule 9, of the Civil Procedure Code, for appointment of Commissioner is allowed”.
10. I am in respectful agreement with the view taken by this Court in the aforementioned case. It is clear that under Order 26, Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation or not. The object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. The cases of boundary dispute and disputes about the identity of lands are instances, when a Court should order a local investigation under Order 26, Rule 9 of the Code of Civil Procedure. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue.
11. However, reference may also be had to the decision of the Supreme Court in the case of Ram Kishore Sen v. Union of India, AIR 1966 SC 644 wherein it has been held in para 12 that, “it is true that section 83 of the Evidence Act provides that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. were so made and are accurate, but the maps or plans made for the purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of the maps which satisfy the requirements prescribed by the first part of section 83. Exh.A-1 obviously does not fall under the category of the said map and so there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr. Mukherjee has given us no satisfactory reasons for differing from the said conclusion”.
12. I may also usefully refer the decision of Apex Court in E. Achuthan Nair v. P. Narayanan Nair, (1987) 4 SCC 71 wherein it was held, “In India, the question whether a suit is cognizable by a Civil Court is to be decided with reference to section 9 of the Civil Procedure Code. If the suit is of a civil nature, the Court will have jurisdiction to try the suit unless it is either expressly or impliedly barred. A dispute regarding identification of boundary between two adjacent land owners is certainly a dispute of a civil nature and it is not barred either expressly or impliedly. The Courts in India will not be justified in importing the technicalities of English law and the distinction made by the English Courts between legal estates and equitable estates. The report submitted by the Commissioner appointed by the trial Court to locate the boundary in the manner indicated in the agreement between the parties was rightly accepted by the High Court. (emphasis supplied). The decree passed by the High Court in terms of the prayer made by the plaintiff-respondent has to be confirmed”. The Court further observed that “disputes as regard the location of boundary separating adjacent lands of different owners may arise under so many circumstances. One common instance is where portions of survey field are transferred or allotted to different persons without mentioning either the side measurements or other necessary measurements to fix the geometrical shape of the plot at the spot. The area and location alone may have been shown in the transfer deed or the partition deed. Without changing the location, the area conveyed or allotted may be sought to be located in one or more alternative geometrical shape by one owner. Again, any one party may wish to have the limits of the area belonging to him demarcated so that he may either enclose the area to prevent trespass or to exercise acts of possession without encroaching into the neighbouring plot. If the other party on demand does not co-operate, a cause of action arises to have the limits of his property determined through Court. Again the property conveyed or allotted may have been described only with reference to neighbouring properties. Those properties may or may not have been limited in extent and shape to a survey field. In that case, a fixation of the boundary of those properties may be necessary to fix the boundaries of the properties conveyed or allotted. If there is no co-operation in doing that, that may result in a dispute. These instances are only illustrative and not exhaustive. All these disputes are disputes of a civil nature and they can form the subject matter of a suit under section 9, Civil Procedure Code. There is no express or implied bar under any other law. According to me, whenever there is a dispute between two parties as regards the location of a boundary separating their neighbouring properties and if on a demand to co-operate in fixing that boundary it is not given, a suit will lie at the instance of the demanding party. So I agree with my learned brother that the decision in Rayappan v. Yagappan, 1958 Ker LT 955 is not correct and has to be overruled”.
13. It is necessary to reproduce Rules 9 and 10 of Order 26 of the Code of Civil Procedure which read as under:
“9. Commissions to make local investigations- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
10. Procedure of Commissioner.— (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit.— The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which has made the investigation.
(3) Commissioner may be examined in person.— Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit”.
14. Bare reading of the aforesaid provision of law would reveal that the Commissioner can be appointed under Order 26, Rule 9, Civil Procedure Code and the Commissioner has not only to take the joint measurements but to prepare a report and submit it to the Court which can be read in evidence as per sub clause (2) of the Rule 10 of Order 26, Criminal Procedure Code.
15. In view of aforesaid legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and the defendant for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure not only becomes relevant but appears to be absolutely essential for the just decision of the case.
16. Let us examine the present case. It is not in dispute that the deceased plaintiff is the title-holder of the plot No. 93 admeasuring 195 sq.ft and plot No. 94/1 admeasuring 825 sq.ft Similarly, both the Courts below have concluded a finding of fact that the defendant has become the owner of plot No. 94/2 admeasuring 248 sq.ft which was purchased by his father by virtue of the registered sale-deed dated 25-7-1942. Admittedly, he is also the owner of plot No. 93 admeasuring 993 sq.ft which is shown in Index (Ex. 89) which is the extract from the maintenance Khasra for 1981–82. At this stage, I need not go into the question of adverse possession because the map on which reliance is placed by the plaintiff for proving the alleged encroachment is not the accurate one and in this context the evidence of private surveyor Dadaji Narayan shows that he has admitted in the cross examination like this “In the map of 1919–21, the plot No. 94 is shown as plot No. 94/1 and 94/2. But I am unable to say that: in what year the map was corrected. I have given details about the area of plot No. 94/2, i.e 248 sq.ft and the area of plot No. 94/1 is shown as 825 sq.ft in index. The area of every plot is shown in Nazul Khasra”.
17. This private surveyor took the measurement on 1-1-1979 and prepared the map. But one does not know as to whether he had also prepared any written report along with the map. The suit has been “instituted on 21-11-1979. That means the map Ex. 1-A appended to the plaint was prepared by the private surveyor for the purpose of the cause and moreover it appears that he did not take the joint measurements of the property, i.e the plots owned by the parties. Unless joint measurements are taken, nothing certain could be said as to whether the defendant had made encroachment on those plots. There is absolutely no evidence to indicate that the total encroachment made by the defendant on the plots of the plaintiff was to the extent of 66.9 sq.ft + 526 sq.ft = 592.9 sq.ft as alleged by the deceased plaintiff.
18. The second map (Ex. 84) has been drawn by the private surveyor Dadaji Marotrao (D.W 2). His evidence would reveal, that he had not taken the joint measurement of plot No. 73. His evidence would further show that he had prepared the map (Ex. 102.) and the report (Ex. 103). The evidence of this private surveyor only shows that the defendant has made encroachment on plot No. 94 to the extent of 376 sq.ft whereas the map drawn by the plaintiff's private surveyor show that the total encroachment was to the extent of 529.9 sq.ft The private surveyor clearly admitted in cross examination that he did not show the area of plot No. 73 in the report Ex. 73 and it is a fact that the total area of plot No. 73 has not been shown in the map (Ex. 102). This private surveyor admitted in cross examination like this:
“I have not shown the area of plot No. 73 in Ex. 103, i.e ind Ex. It is true that I did not take the help of bandobast map for preparing a map at Ex. 102. I do not know whether the plot No. 94 is shown as 94/1 and 94/2 in the bandobast map. I do not know whether Ex. 94 is a map of 1980–81 or old one. The deft. did not show the sale deed of plot No. 94/2. Portion mark ‘A’ in Ex. 103 was written as per the say of the deft. The defendant did show me the partition deed of Lahu and Bhiwa. Portion mark ‘B’ in Ex. 103 was written as per the say of the defendant. It is true that all the contents in Ex. 103 were written according to the say of the defendants except measurement. It is true that the explanation which is given in Ex. 102 was written according to the say of the defendant. It is true that from which point I had started measurement is not shown in Ex. 103. I have shown the whole area of plot No. 94/2 and 94/1 in Ex. 103”.
(emphasis added.)
This evidence of private surveyor Dadaji Marotrao would show that nothing certain could be said as to what is the exact area under the encroachment and, therefore, I am of the considered view that this is a fit case which deserves to be remanded to the trial Court for appointment of Commissioner under Order 26, Rule 9 of the Code of Civil Procedure in the light of the observations made above in this judgment after giving opportunity to both the sides to adduce evidence upon the issue of encroachment. The Commissioner, i.e City/Cadastral Surveyor from the office of Taluka Inspector of Land Records (T.I.L.R) or District Inspector of Land Records (D.I.L.R) “is supposed to carry out the joint measurements in the sense that he shall take the measurements of the properties owned by the parties after taking into consideration the title deeds of the parties, bandobast map etc. and shall also demarcate the boundaries of the property by noting down the actual measurement in the joint measurement map itself by showing the precise and concise area under encroachment. If any, and then shall submit the map and the report to the trial Court.
19. The appeal is allowed. The judgments and decrees passed by both the Courts below are set aside and the suit is remanded to the trial Court for fresh decision according to law in the light of the observations made above. The trial Court shall decide the matter expeditiously and at any rate within three months from the date of receipt of the record and proceedings of this case. Record and proceedings be sent back to the trial Court immediately, without any delay. The defendant is directed to appear before the trial Court within two weeks. No coots.
Appeal allowed.
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