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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

WRIT PETITION NO. 7912/2019

Chaganlal @ Ghanshyamdas Shrikisandas Rathi

...Versus...

Nitinkumar Pundalik Mankar

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders or directions

and Registrar's orders

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Shri Rahul Tajne, Advocate petitioner

Shri U.J.Deshpande Advocate for Respondent

CORAM : AVINASH G. GHAROTE, J.

DATE : 20/09/2021

Heard Mr. Tajne, learned counsel for the

petitioner, who challenges the order dated 04.11.2019 passed

by the trial Court, whereby the application for

re-measurement of the suit property has been rejected.

Mr.Tajne, learned counsel for the petitioner submits that since

the surveyor who had carried out the original measurement,

based upon whose report the suit was filed, had passed away,

the Court was requested to permit a fresh measurement,

which was so permitted. The fresh measurement was not

agreeable to the plaintiff, therefore, objections were filed. An

application to cross-examine came to be rejected on

05.08.2019, as a result of which the Surveyor was examined

by the plaintiff as his witness, who in turn was cross-

examined by the defendant.

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After this unheard of procedure was over, the

plaintiff again moved an application for re-measurement of

the land on the ground that the earlier measurement, was

incorrect, which has been rejected by the Court. Mr. Tajne,

learned counsel for the petitioner submits that there was a

need for re-measurement, as the report of fresh measurement

did not indicate the encroachment. He further submits, that

in order to decide the suit in its correct perspective, the re-

measurement is necessary.

Mr. Deshpande, learned counsel for respondent

submits that the demand for fresh measurement, is to collect

evidence and nothing else. Earlier also objections were raised

to the measurement done by the Surveyor, with an intention

to remeasure the suit property vide Exh.37, which came to be

rejected on 18.06.2019 and now the same cannot be again

permitted.

It is not disputed that considering the fact that

the Surveyor who had made the measurement on the basis of

which the suit was filed, was no more, in view of which the

learned trial Court had ordered re-measurement. Merely

because the report did not satisfy the plaintiff, that cannot be

a ground in law to order re-measurement, as such an attempt

could be only to collect additional evidence and nothing else,

which is impermissible in law. The petitioner had an

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opportunity to raise objection to the measurement report

which has been so done and the petitioner has further

adopted a course of examining the Surveyor and has taken

his chance, which being the position, the matter now cannot

be permitted to be re-opened by directing fresh

measurement, in view of which I do not see any infirmity in

the impugned order. The same is therefore without merit and

the petition is dismissed.

JUDGE

rvjalit