1. Suit for declaration, injunction, and possession regarding alleged land encroachment — dispute over title and actual possession based on sale deeds and a court-appointed surveyor's report. (Para 2 , 3 , 4 , 5 , 6 , 7 )
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2021 Supreme(SC) 563
SUPREME COURT OF INDIA
R. Subhash Reddy, Hrishikesh Roy, JJ.
Matadin Surajmal Rajoria (Deceased) Through Sole Legatee Lalita Satyanarayan Khandelawal - Appellant
Versus
Ramdwar Mahavir Pande (Dead) Thr. Lrs. & Ors. – Respondents
Civil Appeal No. 5847 of 2021 (Arising out of SLP (C) No.33865 of 2018)
Decided On : 21-09-2021
Important Points
IMPORTANT POINT
Without decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law.
Without decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law.
Subject
Property Law - Encroachment
Headnote
Civil Suit - Suit for declaration, injunction and possession - Encroachment of land – Substantial question of law - Sale deed was executed through plaintiff’s registered Power of Attorney holder and it was specified therein that a portion of purchased land is encroached by Defendants - High Court erred in not recording a finding on question of law formulated later, to account for Court Surveyor's report, vis-a-vis the legal battle over suit land - Without the decision on relevant aspect which goes to root of dispute, the impugned judgment in our assessment, fails scrutiny of law - matter is remanded back to High Court to consider and render a finding on the substantial question of law framed by the learned Judge - Hence, appeal allowed. (Paras 11 and 12)
Facts of the Case:
Whether in face of order passed by appellate Court in pursuance of direction of this Court for appointment of Surveyor and carrying out measurement in the present case, the concurrent findings rendered by the two Courts below are sustainable - According to plaintiff, he measured his land and learnt that the defendant no.1 had committed encroachment to extent of 35 R from Southern side while defendant no.2, had encroached about 3 R land from same Southern side of his land.
Finding of the court:
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 - 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 - Court set aside the judgment passed by the Bombay High Court, Nagpur Bench in the Second Appeal. The matter is remanded back to the High Court to consider and render a finding on the substantial question of law framed by the learned Judge.
Result: Appeal allowed
Legal Category Hierarchy
Advocates appeared:
For the Petitioner(s): Mr. S. Niranjan Reddy, Sr. Adv. Mr. D. Abhinav Rao, AOR
For the Respondent(s): Mr. V.K. Shukla, Sr. Adv. Ms. Taruna Ardhendumauli Prasad, AOR Mr. Rohit Pandey, Adv. Mr. Varad Dwivedi, Adv. Mr. Vaibhav Maheshwari, Adv. Ms. Vaishali Singh, Adv. Mr. Prabhu Singh, Adv. Mr. Gaurav Choudhary, Adv. Mr. Suhas Kumar Kadam, Adv. M/S. Black & White Solicitors, AOR
For the Petitioner(s): Mr. S. Niranjan Reddy, Sr. Adv. Mr. D. Abhinav Rao, AOR
For the Respondent(s): Mr. V.K. Shukla, Sr. Adv. Ms. Taruna Ardhendumauli Prasad, AOR Mr. Rohit Pandey, Adv. Mr. Varad Dwivedi, Adv. Mr. Vaibhav Maheshwari, Adv. Ms. Vaishali Singh, Adv. Mr. Prabhu Singh, Adv. Mr. Gaurav Choudhary, Adv. Mr. Suhas Kumar Kadam, Adv. M/S. Black & White Solicitors, AOR
Table of Contents
2. Appellant claims mismatch between defendants' sale deeds and occupied area; respondents rely on concurrent findings and recitals in the plaintiff's sale deed. (Para 8 , 9 )
3. High Court failed to record a specific finding on the formulated substantial question of law, ignoring fresh evidence from the court-appointed surveyor. (Para 10 , 11 )
4. A judgment is legally unsustainable if it fails to record a finding on a substantial question of law formulated by the court for adjudication. (Para 10 , 11 )
5. Judgment set aside and matter remanded to High Court to decide the substantial question of law expeditiously. (Para 12 , 13 )
6. What is the legal consequence when a court formulates a substantial question of law but fails to record a specific finding on it in the judgment?
The judgment is considered devoid of an independent finding on the core issue and fails the scrutiny of law, rendering it unsustainable and subject to being set aside and remanded. (Para 10 , 11 )
7. How should a court treat a mismatch between the area mentioned in a title deed and the actual area occupied by a party?
Such a mismatch, particularly when supported by a court-appointed surveyor's report, is a material factor that must be weighed to determine if a party is in illegal possession of excess land. (Para 10 )
JUDGMENT :
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. Leave granted. The appellant now (represented by his daughter) filed the Civil Suit No.332/2003 alleging encroachment by the two defendants namely Ramdwar 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.
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 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 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
