JUDGMENT
Joshi A.H., J.
1. Rule. Rule is made returnable forthwith. Heard finally by consent. Plaintiff filed a suit for removal of encroachment based on measurements done by her.
2. In order to prove the measurements, the plaintiff examined the cadastral surveyor Shri Vivek Purushottam Bihade, who had conducted the survey. Examination of this witness had become necessary because the measurement relied upon by the plaintiff was not admitted by the defendant. In the cross-examination, this witness has given crucial admissions, namely there was no permanent measurement mark [stone or pole etc.] on the Eastern-side. He gave similar admission as regards a measurement mark on the North side boundary of Survey No. 83, as well as on the side of the road. He has found permanent marks on other sides.
3. The defendant’s objection is that in view of this very fact, fresh Commissioner needs to be appointed for measuring both the lands.
4. The evidence of cadastral surveyor was over on 7th December, 2005. Application for appointment of a Commissioner was filed on the next date, i.e., on 20th January, 2006. This application remained pending almost for two years, and has been rejected by order dated 4th January, 2008.
5. The grounds of objection raised to the application are the grounds of objection for opposing the present petition. It is alleged that:
[a] the application is aimed at delay;
[b] once the measurement is done, any objection to measurement is to be raised by filing an appeal;
[c] admittedly, no such appeal has been filed, and
[d] it is a wrong notion that for arriving at the fact of encroachment or area thereof, both the lands should be measured.
6. Normally, if the measurement is done by a cadastral surveyor for ascertaining the encroachment and at that time only both the lands are measured on the basis of permanent boundary marks or admitted boundary marks, any question of further evidence would not arise.
7. Admittedly, in the present case, when the cadastral surveyor admits that on two sides, which are, in fact, the sides of the then alleged encroachment, the boundary marks are not found. To have a correct approach for ascertaining the area of actual possession and then finding whether there was an encroachment, it is necessary that both the lands should be measured, exact dividing boundary line should be located and it can be found out whether the party, against whom encroachment is alleged, has excess land in possession. If the finding could be otherwise, the story of encroachment would not be proved may be that the plaintiff has lost her land and the said loss could be due to encroachment by any person owning land surrounding the plaintiffs land.
18. Learned Advocate for the respondent Mr. R.L. Khapre has placed reliance on following reported Judgments to substantiate his contention:-
[a] (Gopalkrishnan v. P. Shanmugam) and
[b] (Adammal and Ors. v. Poosari Vellaya Gounder and Ors.) .
9. This Court has considered these judgments. The factual matter of this case is totally different. Precedents cited do not apply to the case. The petitioner has, thus, made out a case to have both lands measured. In the result, Rule is made absolute in terms of Prayer Clause [1]. In the circumstances, parties shall bear own costs.