Expert assessment by a Surveyor from the Govt. Department, based on government records and maps, is necessary in cases involving measurements of properties.

A.B. Chaudhari, J.

This Court had issued notice for final disposal of this Second Appeal on 14th July, 2014 having been prima facie convinced that the dispute between the parties was required to be resolved by having measurements from the experts from the concerned Govt. Department, since it was found, while issuing notice, that both the Courts on their own based their findings on the basis of papers, maps etc., placed before them, i.e., without appointing a Surveyor from the concerned Govt. Department, to find out the exact claim of the parties to the dispute.

2. Upon service of notice, learned Adv. Mr. Karmarkar appears for the respondent sole. Mr. Karmarkar fairly states that it would be proper that both the parties to the dispute know the exact measurements of the properties they own and posses, as they have purchased their respective properties for payment of valuable consideration. It is in this context, both the parties have, therefore, agreed for having a final disposal of this appeal at the admission stage, in order that no further years are wasted in the Court.

3. In the wake of the above position, I frame the following Substantial Question of Law :-

Whether the courts below committed an error in law in not appointing a Court Commissioner, under Order-XXVI, Rule 9, Civil Procedure Code, preferably a Surveyor from the Land Records/Survey Department for measurement of properties belonging to both the parties to the suit, of course, based on the previous records, maps, sale-deeds etc., of the parties to the dispute, and in the light of large number of Single Bench decisions of this Court which have acquired the status of stare decisis? ....

Yes.

What order? &

Appeal is partly allowed.

4. I have heard learned counsel for the rival parties for quite some time. I have perused both the impugned Judgments recorded by the courts below.

5. The parties to the dispute, i.e., plaintiff and defendant, have crossed swords over the actual measurments of the plots purchased by them, which are adjacent, so also the open space claimed to have been purchased by the plaintiff. The defendant purchased a plot by a sale-deed obtained by him. Thus, the dispute was clearly regarding the sizes of the properties purchased by each of them and rival claims thereon. Both the parties filed respective maps in order to buttress their respective contentions. The Lower Appellate Court has extensively discussed, compared the maps and also applied scale on its own and came to the conclusion that the plaintiff proved her case. The appellant, however, contends that all that comparison made by the Lower Appellate is appearing for the first time in the Judgment, which is controverted by Mr. Karmarkar.

6. Be that as it may, in my opinion, the matters of measurements of plots in a City like Nagpur are not left to the imagination. The records of the Survey Department, the sanction of the layout maps etc., are required to be considered by an expert person, namely the surveyor. In my opinion, it was risky for the Lower Appellate Court to go into the niceties of the measurements, application of scale and so on and so forth on its own without the spot being actually seen regarding the property actually purchased and the property actually in possession. Therefore, to draw conclusions on the basis of papers before the Court would be not reaching to the truth of the matter. This Court has repeatedly held that in such cases, a surveyor from the Govt. Department, who has access to all the govt. records, should be appointed to find out the truth, that too after considering the claims of rival parties, their sale-deeds, maps and so on and so forth and then the parties may be allowed to object to the same if they do not agree with the report of the surveyor and then proceed to draw conclusions. Howeve