2014 Supreme(Bom) 787

In the High Court of Bombay at Goa
S.B. SHUKRE, J.
Vasant Tukaram Prabhu
Versus
Xalinibai Borcar alias Smt. Shalinibai Borkar (expired) represented by her L.R's & Others
Appeal From Order No. 71 of 2013
Decided on: 28-03-2014

Headnote:Civil Procedure Code, 1908 - Order XXVI, Rule 9 - Order XLI, Rule 31 - Appointment of Court Commissioner. - Dismissal of suit for possession and injunction by trial Court on ground that plaintiff failed to establish identity and boundaries of suit property, renders order of First Appellate Court directing trial Court to appoint Court Commissioner, justified. - On perusal of the judgment of the trial Court, it is no doubt seen that although the trial Court considered the nature of the evidence of attorney of the plaintiff PW 1, and his failure to properly identify the suit property, it also considered the other evidence of the plaintiff and evidence adduced by the defendants so as to arrive at a conclusion that plaintiff failed to establish her ownership and possession of the suit property and that the defendants could at least establish their possession and enjoyment of the suit property. But, it must be noted that inspite of consideration of the other evidence by the trial Court, main plank of reasoning of the trial Court has been the inability of the plaintiff to establish the identification of physical boundaries of the suit property either by failure to examine expert or by failure to produce on record adequate and reliable documentary evidence. The trial Court has also observed that the question would have been different if the identification of the suit property vis-à-vis the boundaries on the document of conveyance was done by an expert in survey or any technical person who could have proved the identification of the suit property.

       The trial Court, no doubt has also found that no material was produced on record by the plaintiff as to when survey in old survey plan was conducted and that if there was any survey under old codastral plan after the grant of the suit property to Dadu Devu Gaonkar or its sale by him to Cipriano Cesar Coelho Do Amaral, the name of the original owner, Comunidade of Nirancal appearing in codastral survey plan Exh. PW 1/D would have been deleted and the name of the purchaser would have been reflected, which however, was not the case as seen from the cadastral survey plan. But, this observation is only by way of an additional reason for rejecting the claim of the plaintiff as trial Court had found that the plaintiff had failed to establish the identity of the suit property by failure to examine some expert-to establish the identity and boundary of the suit property. Failure of the plaintiff to explain absence of name of predecessor in title in the old survey plan was seen by the trial Court as only deepening the doubt about identification of the suit property. There have been also other reasons given by the trial Court which are only in addition to and not as alternatives to the failure of the plaintiff to establish physical boundaries and identity of the suit property. Thus, Court finds great substance in the argument of counsel for the plaintiff that the whole emphasis of the reasoning given by the trial Court in dismissing the suit is that it is the duty of the plaintiff to establish the identity and boundary of the suit property and one of the ways in which this duty could have been better performed by the plaintiff, in the opinion of the trial Court, was by examining some expert in the field as witness of the plaintiff.

       The reasoning adopted by trial Court would make the suit as the one involving dispute about identity and boundaries of the suit property. Law is now fairly well settled that whenever controversy in the suit revolves around the identity and boundaries of the suit property, the law would require the Court to suo motu exercise its power under Order XXVI Rule 9 of the CPC, 1908 by appointing Commissioner for making local investigation for the purpose of elucidating the identity and boundaries of the suit property, so as to sub-serve the cause of justice.

       Civil Procedure Code, 1908 - Order XLI, Rule 31 - Judgment of Appellate Court. - Failure of trial Court to appoint Court Commissioner, though real controversy revolves around boundaries of suit property, not vitiates judgment of First Appellate Court, framing and considering only one point, realising need to appoint Commissioner. - In the case of G. Amalorpavam and others v. R.C. Diocese of Madurai, (2006) 3 SCC 224 : 2006 (2) All MR 136 (SC), the Hon’ble Apex Court had held that whether in a particular case there has been substantial compliance with the provisions of Order XLI, Rule 31, CPC has to be determined on the nature of the judgment delivered in each case. It is further held that non-compliance with the provisions, may not vitiate the judgment and make it wholly void and may be ignored if there is substantial compliance with it and that justice thereby not suffered. In the peculiar facts of this case, applying this ratio, the nature of the controversy involved in the present case required the First Appellate Court to first determine, if any expert ought to have been appointed to identify the suit property and the First Appellate Court did find it necessary and having found so, it became necessary for it to keep open the remaining questions for their appropriate adjudication by the trial Court in the light of the additional evidence of the report of the Commissioner. If it had framed other points for determination and answered them, same would have resulted in miscarriage of justice. Since the remaining points have been kept open, both the parties will have equal opportunity to establish and prove their respective cases in the light of additional evidence, which may not have been possible if the First Appellate Court had recorded its findings on other aspects. Therefore, there has been substantial compliance with the provisions of Order XLI, Rule 31 of CPC which has not resulted in making the justice suffer.