Necessity of following necessary procedure and joint measurement of lands of both parties in cases involving disputed property boundaries.

JUDGMENT

1. The appellant-original defendant has preferred the present appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (the Code) against judgment and order dtd. 27/11/2020 passed by the learned Principal District Judge, Amravati, in Regular Civil Appeal No.42 of 2013 thereby setting aside the judgment and decree of learned Civil Judge, Junior Division, Warud, passed in Regular Civil Suit No.22 of 2004 and remanding back the matter to the said Court with a direction as given in paragraph 25 of the impugned judgment and order of the learned Principal District Judge, Amravati.

2. Brief facts of the case are as under :

(a) The respondent-original plaintiff had filed a suit for declaration and perpetual injunction being Regular Civil Suit No.22 of 2004. It is the case of respondent-plaintiff that he is the owner of land bearing Survey No.1722, House Property No.176, Ward No,.11, Warud along with a well in the said property. The residential house of the appellant-defendant is abutting the western boundary of the suit property of the respondent-plaintiff. The respondent-plaintiff sought a decree for declaration of ownership over the said well and that no person other than him had a right to use the said well. The respondent-plaintiff also alleged that since the appellant-defendant is creating obstruction in the construction activity undertaken by him in his property, he has no right to do so and he should be permanently restrained.

(b) The appellant-defendant resisted the claim and denied all the contentions of the respondent-plaintiff in respect of exclusive ownership of well and about the alleged interference in the construction activity.

(c) According to the appellant-defendant he is the owner of the adjoining land bearing Survey No.1724 and 1725 and likewise other two adjoining Survey Nos.1726 and 1727 are owned by his family members.

(d) The appellant-defendant by way of counterclaim claimed the exclusive ownership over the well of his family members since for last more than seventy to eighty years. He also alleged that under the garb of construction activity, the respondent-plaintiff, infact, is committing encroachment in his property and thus sought perpetual injunction against the interference in his property including the well.

(e) It then appears that the suit and counterclaim were decided vide judgment and decree dtd. 16/12/2005 passed by the learned Civil Judge, Junior Division, Warud. The learned trial Court held that the suit well was a part of the Survey No.1722 owned by the respondent-plaintiff and restrained the appellant-defendant from interfering with possession of the suit well. The counterclaim of the appellant-defendant was also partly decreed restraining the respondent-plaintiff from making any construction in Survey No.1724 and 1725 owned by the appellant-defendant.

(f) In view of above, the appellant-defendant preferred Regular Civil Appeal No.182 of 2008 challenging the said judgment and decree dtd. 16/12/2005. The respondent-plaintiff also filed cross objection in the said appeal. The appeal and the cross objection came to be decided vide judgment and order dtd. 4/7/2012 passed by the learned Adhoc District Judge-2 Amravati. The learned Adhoc District Judge was pleased to set aside the judgment and decree dtd. 16/12/2005 passed by the learned trial Court and remanded the matter back with a direction to appoint Court Commissioner from the office of Tahsil Inspector of Land Records (T.I.L.R.) for measurement of the property and to identify location of the suit well.

(g) The Court Commissioner on his part carried out measurement and submitted report stating that the suit well was a part of Survey No.1724 owned by the appellant-defendant and that the respondentplaintiff had committed encroachment to the extent of 8.00 sq.meters in Survey No.1725 and 1.00 sq.meter in Survey No.1724 owned by the appellant-defendant. In view of the aforesaid, the suit filed by the respondent-plaintiff was dism