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Order below Exh.5 in R.C.S. No.29/2022
(CNR No.MHAH170001902022)
2. The plaintiff contends that this suit is filed for fixation
of boundaries and removal of encroachment. The suit property
mentioned in para 1 of the plaint is jointly purchased by the
plaintiff and defendant no.1 to 4 on 23/3/2011 vide Sale Deed
no.1595/2011 admeasuring about 0H.25R out of 0H 90R in Gat
No. 2/1. The plaintiff states that out of this area he is in actual
possession of 0H.05R which is having boundaries to the East Gat
No.2/1 remaining property in this gat number of Defendant no.1
to 4, to the South Rui Road, to the West property of defendant
no.5, to the North the plaintiff’s property in Gat no. 3 and Property
of Defendant No. 6 in Gat No. 4.
3. The plaintiff further contends that the rough schedule
map is filed alongwith the plaint and as shown in the map the five
parts vide five North South boundaries were made in the suit
property. Out of this suit property the plaintiff’s area is of West
Side admeasuring about 0H.05R which is in ownership and
possession of the plaintiff since the execution of sale deed. The
defendant no.2 broken the northsouth bandh/boundary between
him and the plaintiff many a times and has encroached upon the
area of the plaintiff in the suit property. When the plaintiff carried
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6. Ld. Advocate for the defendants no.1 to 4 argued that
the suit property is in common possession therefore there is no
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question of encroachment. Till date no complaint is made or no
notice is sent by the plaintiff to defendants no.1 to 4 as to
encroachment. It is nowhere mentioned in the plaint that the suit
property is divided separately therefore there is no need of
measurement. The suit be dismissed on the ground of non
compliance of Order VII Rule 3. The documents filed by the
plaintiff such as housetax and water tax receipts are not of the
defendants no.1 to 4.
7. This suit is filed for fixation of boundaries and removal
of encroachment. There is dispute about boundaries of suit
property of the plaintiff. The first objection by the defendants is
the description of suit property is not proper. On perusal of the
plaint para no. 1 it appears that the plaintiff has mentioned the
suit property as jointly purchased by the plaintiff and defendant
no.1 to 4 on 23/3/2011 vide Sale Deed no.1595/2011
admeasuring about 0H.25R out of 0H 90R in Gat No. 2/1. The
plaintiff states that out of this area he is in actual possession of
0H.05R is having boundaries to the East Gat No.2/1 remaining
property in this gat number of Defendant no.1 to 4, to the South
Rui Road, to the West property of defendant no.5, to the North the
plaintiff’s property in Gat no.3 and Property of Defendant no.6 in
Gat no.4. Thus on perusal of the plaint para no.1 it appears that
the plaintiff has described the suit property with the gat numbers
and boundaries.
8. The second objection is the property is not divided and
is in common possession between the plaintiff and defendants
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since the sale deed. The plaintiff has filed documents alongwith
exhibit 16 to show the plaintiff and defendants are in separate
possession. The sale deed filed by the plaintiff shows the plaintiff
and defendants no. 1 to 4 have purchased the property from two
Gat numbers. From Gat no. 3 they have purchased area
admeasuring 0H.05R and from Gat no. 2/1 area admeasuring
0H.25R. The plaintiff has filed house and water tax receipts of the
year 20222023 issued by Grampanchayat Nighoj, Tal.Rahata of
the plaintiff and defendants no. 1 to 4. These receipts show
different house property numbers of the plaintiff and defendants
no. 1 to 4. The plaintiff house property number is 760 and 616,
615, 616/1, 645 are house property numbers of the defendants
no.1 to 4 respectively. The plaintiff has also filed the certificate
issued by the Grampanchayat Nighoj showing boundaries of his
house property no.760. Alongwith exhibit 18 the plaintiff has filed
extract no.8 of Grampanchayat Nighoj of the year 20222023
showing the separate house properties and description of
construction of the plaintiff and defendants no.1 to 4. On perusal
of all these documents it appears that though the plaintiff and
defendants no.1 to 4 have purchased the suit property jointly but
they are in separate possession in the suit property. Moreover the
suit itself is filed for fixation of boundaries by the plaintiff.
9. The defendants no. 1 to 4 have also taken objection
that rough sketch map as to encroachment is also not filed with
the plaint in view of Order VII Rule 3 and have stated for dismissal
of the suit on this ground. On perusal of the record it appears that,
the plaintiff has filed rough schedule map alongwith the plaint but
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“ 13. It is, therefore, obvious that the Honourable Apex Court concluded
that the default or carelessness of the litigating sides would not absolve
the trial Court of it's obligations while scrutinizing the plaint. By pointing
out the omission on the part of the plaintiff, the trial Court should have
insisted on a map of the immovable property, which becomes a part of
the plaint and subject-matter of suit under Order VII, Rule 3 of the Civil
Procedure Code. I, therefore, find that it would be an obligation of this
Court to bring this matter, specifically, to the notice of all the trial Courts
in this case.”
“19. As has been concluded by this Court in Mohana Naik (supra) and
Caterina (supra), that such a defect deserves to be cured and for which
purpose the Second Appeals were allowed and the matters were
remitted to the trial Court after a litigating journey of about 9 to 10 years.
In my view, such a situation can be averted in this case as the stage in
the suit is now for recording of evidence post framing of an additional
issue. So also the suit is of the year 2011 and it cannot be said that it is
more than ten years' old. Nevertheless, the rigours of the contesting
defendants can be reduced by imposing costs upon these two plaintiffs.”
“ 21. Considering the above and in the light of the observations of the
Honourable Apex Court in Pratibha Singh case (supra), in the underlined
portion of paragraph No. 14, reproduced above, I deem it appropriate to
direct the learned Registrar (Judicial) of this Court to place a copy of this
order before each learned Principal District Judge in this State so as to
bring to the notice of each Judicial Officer under the respective Judicial
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11. Since this suit is filed for fixation of boundaries and
removal of encroachment, appointment of Court Commissioner is
necessary. The oral evidence would not be sufficient to decide the
suit on merits. The report filed by Court Commissioner will enable
this Court to decide the suit. No prejudice will be caused to the
defendants no. 1 to 4 if Court Commissioner is appointed to
measure the suit property of the plaintiff and submit the report.
Hence I pass the following order :
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O R D E R
1. Application is allowed.
2. The Taluka Inspector of Land Records, Rahata is appointed as
Court Commissioner.
3. The Court Commissioner is directed to visit and measure the
suit property mentioned in para 1 of the plaint i.e. Gat No.2/1
area 0H.25R, and the area in actual possession of the plaintiff
0H.05R as per the boundaries mentioned in para 1 of the plaint
situated in the village Nighoj, Tal. Rahata, Dist. Ahmednagar.
4. The Court Commissioner shall fix the boundaries and ascertain
encroachment if any over the suit property of the plaintiff
0H.05R and shall clearly describe it with its exact measurement in
the map and the report.
6. The Court Commissioner shall carry out the work of commission
after giving notice in writing to the plaintiff and the defendants
and adjacent owners at the cost of plaintiff.
8. The plaintiff and defendants are directed to supply all necessary
documents required by the Court Commissioner for carrying out
the work of commission.
9. The Court Commissioner shall complete the work of commission
and submit his report along with map within two months from the
date of this order.
10. The plaintiff is directed to deposit necessary fees and charges
in the office of T.I.L.R. Rahata.
Date : 17/12/2022 (S. S. Mulani)
rd
Place : Rahata 3 Jt. C. J. J. D., Rahata