Kiriti Bai vs Amrit - 1995 Supreme(MP) 1194

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : R.P. Jain.
For the Respondent: A.K. Khaskalam.

Headnote:Civil Procedure Code, 1908 – O. 26 R. 9 – case of encroachment of open land of one survey number – commissioner should be appointed to measure entire survey number to ascertain the actual encroached area.
        Short Note
       1. The appellant/plaintiff filed the instant suit for removal of encroachment and find alternative for price of the land encroached by the respondents in construction of a public road and side drain on plot No. 57.
       2. Admittedly, plot No. 58/3 having an area of 0.014 Hectare belonging to the appellant is situated adjoining to plot No. 57 which is a public road. The appellant claimed that in the construction of the road and the side drain a portion of his plot No. 58/3 was encroached by the respondents. He also led the evidence of Ravindra Kumar Naik (PW – 2) and Biharilal (PW – 3), who clearly deposed that portions of the appellant's plot No. 58/3 had been encroached in the construction of road and the side drain.
       3. The learned trial Court, however, discalced the evidence of PW – 2 Ravindra Kumar Naik and PW – 3 Biharilal on the ground that the measurement of entire area of plot No. 58/3 belonging to the appellant was not made. Therefore, the case of the appellant that the road and the drain was constructed in encroached portion of the land, plot No. 58/3 is not proved.
       4. It is settled that in a case based on encroachment the appointment of Commissioner for measurement of the land is a rule for proper adjudication of the case.
       5. Shri A.K. Khaskalam, Govt. Adv., contended that the appellant should have got the Commissioner appointed under Rule 9, Order 26 of the Code of Civil Procedure. The appellant having failed during the trial of the case to get the Commissioner appointed cannot take plea in the appellate stage that appointment of the Commissioner was necessary for the proper adjudication of the case.
       6. On perusal of the evidence available on record, it is however, evident that the measurement was made in respect of the encroachment and entire area of plot No. 58/3 was not measured inadvertently. It is, therefore, just and proper that measurement should be made in respect of the entire area of plot No. 58/3 and plot No. 57 and other plots adjoining to plot No. 58/3 in determination whether the encroachment was made in the construction of the road or in the drain by the respondent. The judgment under appeal is, therefore, set aside. The trial Court is directed to appoint a Commissioner on the cost deposited by the appellant for measurement of the plot" and deliver the judgment afresh in accordance with law within a month after submission of the report by the Commissioner to be appointed for the purpose. The parties are directed to appear before the trial Court on 9.10.95.