Supreme Court of India
MATADIN SURAJMAL RAJORIA (DECEASED) THROUGH SOLE LEGATEE LALITA SATYANARAYAN KHANDELAWAL versus RAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. & ORS. on 21 September 2021
[2021] 6 S.C.R.
AMATADIN SURAJMAL RAJORIA (DECEASED) THROUGHSOLE LEGATEE LALITA SATYANARAYAN KHANDELAWAL
v.
RAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. & ORS.B(Civil Appeal No. 5847 of 2021)
SEPTEMBER 21, 2021
[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
Civil Procedure – Appeal – Second Appeal – Suit filed fordeclaration, injunction and possession alleging encroachment onCland by the defendants – Suit dismissed by trial Court – Decreeaffirmed by first appellate court – Second appeal by plaintiff –On direction of High Court, a surveyor/ Court Commissioner wasappointed to measure the suit property; and on conclusion of thesurvey exercise, the first appellate court was ordered by the HighDCourt to certify the findings on encroachment as recorded by thetrial court, in terms of Rule 470 of the Civil Manual – FirstAppellate Court reversed the findings of trial court and held that,as per the map prepared by the Court Commissioner, the defendantshad committed encroachment – In view of such development, theHigh Court framed a substantial question of law for decision inEthe Second Appeal – Plaintiff’s second appeal was howeverdismissed – Held: While concurrent findings of Courts below arenot to be routinely interfered, on facts, there was a second roundin the litigation and another substantial question of law wasformulated by the High Court for adjudication of the secondFappeal – However, no specific finding on such question of law wasever recorded in the impugned judgment – The High Court skirtedthe issue and instead endorsed the findings of the courts below tothe effect that the defendants had not made any encroachment –The High Court erred in not recording a finding on the questionof law formulated later, to account for the Court Surveyor’s report,Gvis-à-vis the legal battle over the suit land – Without the decisionon the relevant aspect which goes to the root of the dispute, theimpugned judgment fails the scrutiny of law – Matter remandedback to the High Court to consider and render a finding on thesubstantial question of law framed by the High Court itself.
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Allowing the appeal, the Court
HELD: 1.1. While concurrent findings of Courts below arenot to be routinely interfered, it is seen that there was a secondround in the litigation and another substantial question of lawwas formulated by the High Court for adjudication of the secondappeal. However, no specific finding on such question of law wasever recorded in the impugned judgment. The High Courtskirted the issue and instead endorsed the findings of the courtsbelow to the effect that the defendants had not made anyencroachment, after the plaintiff purchased the land on28.12.1995 under the Exhibit 47 Sale deed. The conclusion inthe second appeal was therefore devoid of any independentfinding on the substantial question of law formulated by the Courtitself on 2.5.2018. With the required finding on the additionalissue, a contrary conclusion favouring the other side, can’tentirely be ruled out in the second appeal. This is particularlypossible because of the mismatch between the area underoccupation of the defendants and the smaller area covered intheir two sale deeds. The aspect of defendants occupation ofcertain lands, being mentioned in the plaintiff’s sale deed, mustalso weigh with the Court, in view of the fresh evidencegenerated by the court appointed surveyor. [Para 10][237-E-H]
1.2. The High Court erred in not recording a finding onthe question of law formulated later, to account for the CourtSurveyor’s report, vis-à-vis the legal battle over the suit land.Without the decision on the relevant aspect which goes to theroot of the dispute, the impugned judgment fails the scrutiny oflaw. [Para 11][238-A-B]
2. The matter is remanded back to the High Court toconsider and render a finding on the substantial question of lawframed by the High Court itself. Regard being had for the longpendency for the case and the restricted remand, the High Courtis requested to decide the second appeal expeditiously.[Para12][238-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.5847of 2021.
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AFrom the Judgment and Order dated 14.08.2018 of the HighCourt of Judicature at Bombay, Nagpur Bench, Nagpur in SecondAppeal No.297 of 2013
S. Niranjan Reddy, Sr. Adv., D. Abhinav Rao, Advs. for theAppellant.
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V. K. Shukla, Sr. Adv., Ms. Taruna Ardhendumauli Prasad, RohitPandey, Varad Dwivedi, Vaibhav Maheshwari, Ms. Vaishali Singh,Prabhu Singh, Gaurav Choudhary, Suhas Kumar Kadam M/s Black &White Solicitors, Advs. for the Respondents.
The Judgment of the Court was delivered byC
HRISHIKESH ROY, J.
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1. Heard Mr. S. Niranjan Reddy, learned senior counsel for theappellant. The respondents(defendants) are represented by Mr. V.K.Shukla, learned senior counsel.D
2. Leave granted. The appellant now (represented by hisdaughter) filed the Civil Suit No.332/2003 alleging encroachment by thetwo defendants namely Ramdwar Mahavir Pande and SudamadeviPande. The plaintiff’s contention in the Suit was that on 28.12.1995,he had purchased land (measuring 1 Hectre 62 Acres) from SurveyENo.25 within the municipal limits of Amravati, for consideration ofRs.2,10,000/. The sale deed (Exhibit 47) was executed through theplaintiff’s registered Power of Attorney holder and it was specifiedtherein that a portion of the purchased land is encroached by RadhwarPande and Sudamadevi Pande. According to the plaintiff, he measuredhis land on 23.11.2002 and learnt that the defendant no.1 had committedFencroachment to the extent of 35 R from the Southern side while thedefendant no.2 (related to the defendant no.1), had encroached about3 R land from the same Southern side of his land. Both defendantswere asked to remove their encroachment by the plaintiff and hisdaughter but the defendants did not budge. Accordingly, the Suit cameGto be filed for declaration, injunction and possession.
3. In the written statement, the defendant no.1 claimed title overhis occupied area on the basis of sale deed dated 17.04.1969(Exbt.66) executed by one Vitthalrao Nanwatkar. Likewise, the defendantno.2 claimed title over her occupied area, on the strength of the saleHdeed dated 02.11.1977(Art.A), executed by one Shantabai Jaiswal. The defendants additionally contended that, M/s Edulji Dotimal Ginning andPressing Factory Ltd. earlier filed the Civil Suit No.413 of 1979 againstthe defendant no.1 Ramdwar Mahavir Pande for removal of allegedencroachment to the extent of 7798 square feet. But the said Suit byM/s Edulji Dotimal was dismissed and the defendants continued inuninterrupted 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 failedto prove that the defendants have encroached on his land andaccordingly relief was denied to the plaintiff. The basis for the verdictfavouring the defendants was because at the time of purchase, theplaintiff was having knowledge that some portions of the purchased landwere in possession of two defendants since 1969. The learned trialJudge noted in the judgment that the plaintiff failed to annexe any sketchmap indicating the projected encroachment by the defendants. On reliefbeing refused, the plaintiff filed the Civil Appeal No.199 of 2008 butthe learned Appellate Court endorsed the Trial Court’s decree, favouringthe defendants. The Court noted that the defendants are residing andare possessing the disputed area, with the permission of predecessorin title of the plaintiff and therefore, they cannot be categorized asencroachers.
5. The above lead to the Second Appeal No.297 of 2013 by theplaintiff. The High Court in the said proceedings felt the necessity toappoint a surveyor to measure the suit property, as described in therespective sale deeds relied by the contesting litigants. By order dated7.6.2016, High Court has called for a finding through Trial Court, onthe allegation of Encroachment made by the defendants, after carryingout measurement on the basis of sale deeds (Exhibits 47,66), whereafterone Amol Giri was appointed as the Surveyor/Court Commissioner forjoint measurement of the suit property. The Court Commissioner visitedthe site on 28.11.2016 in Survey no. 25/4 in Village Mhasala andprepared the measurement map (Exhibit 131), in presence of the parties.The surveyor was examined before the Court on 5.7.2017 and on hiscross-examination, the following was elicited:
“….It is correct to say that, according to the map, remaining 38Are land is in possession of Sudamadevi. 1 Are land means 1076Sq. Ft. 38 Are agricultural land means 40888 Sq. Ft area. Asper sale deed at Exh.66, Sudamadevi Pande is owner of 2000
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SUPREME COURT REPORTS
ASq. FT. The land highlighted with Green colour in the map is inpossession of Sudamadevi Pande. The land in pink colour towardsnorthern side of the map adjacent to NMLK letters if measuredfrom green coloured land it comes to 2000 Sq. Ft. Similarly, ifthe lower side of the said colour if joined to green line towardswestern side, it will come to 2000 Sq. Ft. It appearsthat, the landBin Map at Exh. 31 towards southern side of the land shown inpink colour at the northern side is encroached land. The sixpersons shown in the Map Exh. 31 were present at the time ofmeasurement.”
6. The High Court, on being informed of the conclusion of theCsurvey exercise, on 22.2.2018 ordered the Appellate Court to certifythe 7.6.2016 findings on the encroachment recorded by the Trial Court,in terms of Rule 470 of the Civil Manual. Both parties were directedto present themselves before the Appellate Court for the orderedexercise. Following such direction, the first Appellate Court considered
Dthe matter and vide its order dated 10.04.2018, reversed the findingsof the Trial Court and held that, as per the map prepared by the CourtCommissioner, the defendants had committed encroachment to anextent of land measuring 38 R (40888 square feet). In view of suchdevelopment, on 2.5.2018 the High Court framed the followingsubstantial question of law for the decision in the Second Appeal:-E“Whether in the face of order dated 10.04.2018 passed by theappellate Court in pursuance of direction of this Court forappointment of Surveyor and carrying out measurement in thepresent case, the concurrent findings rendered by the two Courtsbelow are sustainable?”F7. The plaintiff’s second appeal was however dismissed andaccordingly the impugned judgment favouring the defendants ischallenged in this appeal.
8. The learned Senior Counsel for the appellant Mr. S. NiranjanGReddy submits that the High Court failed to appropriately consider themeasurement map (Exhibit 131) and the deposition of the Courtappointed Surveyor and thereby rendered an erroneous finding whichoverlooks the encroachment by the respondents- defendants. Accordingto 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 theHcounsel that the Court should have weighed the fact that the defendants claim on the basis of the respective sale deeds (dated 17.04.1969 and2.11.1977) mismatch with the land under defendants occupation. Thearea occupied measure 38R (40,888 sq. ft.) whereas this is notcompatible with the extent of land mentioned in the sale deeds reliedby the defendants. As such, it is argued that due credence should havebeen given to the finding of the Court’s Surveyor that the defendantsare in illegal possession of excess land.
9. On the other hand, Mr. V.K. Shukla, learned Senior Counselrefers to the concurrent findings in favour of the defendants by the TrialCourt, the Appellate Court and the High Court and argues that theappeal in the present facts, is not to be entertained by this Court. Forthe defendants, the counsel refers to the plaintiff’s sale deed (Exhibit47) to point out that the sale deed itself specifically mentioned the areaunder occupation of the two defendants in the land purchased by theplaintiff. It is therefore argued that the plaintiff on the basis of thesale deed (Exhibit 47) can have no legitimate claim on the areas underoccupation of the defendants since before the sale transaction of theplaintiff.
10. The contention advanced by the rival counsel have beenconsidered. While concurrent findings of Courts below are not to beroutinely interfered, it is seen that there was a second round in thelitigation and another substantial question of law was formulated by theHigh Court for adjudication of the second appeal. However, no specificfinding on such question of law was ever recorded in the impugnedjudgment. The learned Judge skirted the issue and instead endorsed thefindings of the courts below to the effect that the defendants had notmade any encroachment, after the plaintiff purchased the land on28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the secondappeal was therefore devoid of any independent finding on thesubstantial question of law formulated by the Court itself on 2.5.2018.With the required finding on the additional issue, a contrary conclusionfavouring the other side, can’t entirely be ruled out in the second appeal.This is particularly possible because of the mismatch between the areaunder occupation of the defendants and the smaller area covered intheir two sale deeds. The aspect of defendants occupation of certainlands, being mentioned in the plaintiff’s sale deed, must also weigh withthe Court, in view of the fresh evidence generated by the court appointedsurveyor.
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A11. The above has persuaded us to hold that the High Court erredin not recording a finding on the question of law formulated later, toaccount for the Court Surveyor’s report, vis-à-vis the legal battle overthe suit land. Without the decision on the relevant aspect which goesto the root of the dispute, the impugned judgment in our assessment,fails the scrutiny of law.B
12. In view of the forgoing, we set aside the judgment dated14.8.2018 passed by the Bombay High Court, Nagpur Bench in theSecond Appeal no.297/2013. The matter is remanded back to the HighCourt to consider and render a finding on the substantial question oflaw framed on 2.5.2018 by the learned Judge. It is ordered accordingly.CRegard being had for the long pendency for the case and the restrictedremand, the High Court is requested to decide the second appealexpeditiously and preferably within six months of receipt of this order.
13. The appeal is accordingly allowed without any order on costs.
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Bibhuti Bhushan Bose
Appeal allowed.
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