Court Commissioner for land measurement under CPC not appointable before plaintiff's evidence in encroachment suit on alleged government acquired land when dispute is acquisition status per prior decree, not boundaries.

JUDGMENT :

AJIT B. KADETHANKAR, J.

Rule. Rule made returnable forthwith. Considering the nature of controversy between the parties, I have heard the matter for final disposal by consent of learned counsel for the respective parties.

2. Subject-Matter:-

An order passed by the learned Civil Judge, Senior Division, Shahada, Dist. Nandurbar on 18.07.2024 in Regular Civil Suit No.23 of 2023 u/s 75 r/w Order 26 Rule 9 the Code of Civil Procedure is under challenge. In a suit for mandatory injunction for removal of encroachment caused by the Defendant on Government acquired land, the Defendant sought appointment of a Court Commissioner to admeasure the land in Gut No.89/1 situated at Village Kukadel, Tq. Shahada, Dist.Nandurbar and for fixing the boundaries. Order passed by the Trial Court appointing Court Commissioner is the subject-matter of this Petition.

3. Introduction: 15 R land owned by Respondent No.1’s mother at Village Kukadel, Tk. Shadada, Dist. Nandurbar was acquired by the State Government. The owner attempted to re-occupy the said land on account of failure of Govt. to use it for public purpose. Owner’s suit filed against the State govt. was dismissed. Civil Court observed that the land was acquired by the State Government, and the Plaintiff therein had no right over it.

Now, Respondent No.1 – legal heir of the deceased owner again re-occupied portion of the same 15 R land acquired by the Govt. Hence the petitioner, suffering nuisance due to the encroachment and construction on the said piece of land, lodged present suit.

While Petitioner contends that encroachment is on the land acquired by the Government, Respondent No. 1 contends that the 15 R land was never acquired. He alternatively submits that the land is unsusceptible to the acquisition due to non utilization by the Govt. for the purpose for which it was acquired.

4. Core issue: On this backdrop, the Respondent No.1/Defendant No.1 sought appointment of Court Commissioner for measurement of the land even before Plaintiff’s evidence could be completed.

Hence core issue for consideration is if the dispute is whether the land in question was acquired by the Government or not, whether is the Trial Court justified in engaging Court Commissioner for measurement of the land.

5. FACTS IN BRIEF:-

5.1. Respondent No.1’s mother, i.e. deceased Kantabai Narrottam Patil was the owner of land admeasuring 01 H 01 R situated at Survey No.89/1 at village Kukadel, Tq. Shahada, Dist. Nandurbar. As per petitioner’s contention, the land admeasuring 15 R out of said property was acquired by the State of Maharashtra for road and canal. That, the said land remained unutilized by the Government for the given purpose.

5.2 The owner namely, deceased Kantabai Patil reoccupied the land and filed Regular Civil Suit No.71 of 2005 in the Court of learned Civil Judge, Senior Division, Shahada, for declaration and perpetual injunction against the State authorities and some private parties.

5.3 Learned Civil Court, after assessing the evidence on record arrived at conclusion that the plaintiff could not prove that she was owner of the suit land and that the deceased proved encroachment of the plaintiff over 15 R subject-matter Government land. It was also observed that 15 R Government land was acquired by the State Government, and that the status of land was an acquired land. The judgment and decree was never taken up in challenge, the same is still intact.

5.4 Subsequently, the Respondent No. 1 who is legal representative of deceased Kantabai reoccupied the said 15 R Government land and carried out construction over there.

5.5 The petitioner, who is the adjoining land owner su nuisance due to due to the activities of the respondent. Hence, he filed Regular Civil Suit No.23 of 2023 in the Court of learned Civil Judge, Senior Division, Sha