JUDGMENT
S.T. Kharche, J.
1. Invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, 1976, in this second appeal the original plaintiff has challenged the judgment and decree passed by the appellate court on 8.9.1987 in Reg. Civil Appeal No.24 of 1982 reversing the judgment and decree passed by the trial Court on 20.3.1982 in Reg. Civil Suit No.12 of 1979, directing the defendant to remove the disputed construction as shown in the map appended to the suit within a month.
2. Heard Mr.Badiye, learned counsel for the appellant (original plaintiff). None present for the respondent.
3. On perusal of the judgment and decree passed by the trial Court, it would reveal that the plaintiff had instituted a suit for mandatory injunction asking the defendant to remove the construction on the site shown by letters W P GH and G in the map appended to the plaint and for a perpetual injunction that he should always keep open the common courtyard shown by letters Wa P D A in the map for the use and access of the plaintiff. The trial Court granted decree in favour of the plaintiff asking the defendant to remove the disputed construction as shown in the map appended to the suit within a month on the ground that there was consent and acquiescence. It is relevant to note that in para 6 of the judgment, the trial Court mentioned that the defendant in his written statement admitted that the house originally was a joint family property and was partitioned and did not dispute the shares as averred. He has also admitted that the plaintiff purchased the share of Ramchandra Rajeshwar. The share in his possession and in possession of his brother Anandrao are also admitted. However, according to him, he has no knowledge about the details of the partition and that the contents of para no.1 of the plaint do not tally with the map provided to him.
4. Thus, it would reveal that the decree granted by the trial Court is totally vague because the plaintiff himself did not make it clear as to what was the area and size of the property owned by him by virtue of partition. The defendant also did not make it clear as to how much area of the property was allotted to his shares. No joint measurement of the respective shares of the property owned by the parties was taken through the City Surveyor. Admittedly, the parties also did not move the trial Court or the Appellate Court for appointment of Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure for the purpose of local investigation. The map appended to the plaint cannot be said to be an accurate map and it cannot be admitted in evidence.
5. Section 83 of the Indian Evidence Act 1872 lays down that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. were so made and are accurate; but maps or plans made for the purpose of any cause must be proved to be accurate.
6. Bare reading of the aforesaid provision would reveal that the maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a map is accurate lies on the party who produced it. The maps must be proved by the person who has prepared them. They are post litem motesa and lack necessary trustworthiness. Where the maps are made for the purpose of a suit there is, even apart from fraud which may exist, a tendency to colour, exaggerate and favour which can only be countenanced by swearing the maker to the trust of his plan. Hence, there is no presumption of accuracy in respect of the map or plan which is made for a particular cause and it goes without saying that a map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. In any case, in which there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and/or subsequent reference in the pleadings or judgment to place the mark on a map should be referred to this map which must be attached to the decree and signed by the Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case over all again. The map should be drawn with the North at the top and letters marking points should not be put in side ways or upside down.
7. I may usefully refer the decision of our High Court in the case of Krishnarao v. Mahadeorao 1953 N.L.J. Note 230 at page 72 wherein it has been observed that under Order XXVI Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation or not. The object of the local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its pecuniary nature can only be had on the spot. The cases of boundary disputes and disputes about the identity of lands are instances, when a Court should order a local investigation under Order XXVI Rule 9 of the Code of Civil Procedure – 12 I.C. 347 Foll. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue.
8. However, reference may also be had to the decision of the Supreme Court in the case of Ram Kishore Sen & ors. vs. Union of India – wherein it has been held in para 12 that, “it is true that Section 83 of the Evidence Act provides that the Court shall presume that the maps or plans purporting to be made by the authority of the Central Govt. or any State Govt. were so made and are accurate, but the maps or plans made for the purpose of any cause must be proved to be accurate. The presumption of accuracy can thus be drawn only in favour of the maps which satisfy the requirements prescribed by the first part of Section 83. Exh.A-1 obviously does not fall under the category of the said map and so there can be no question of drawing any presumption in favour of the accuracy of the said map. In fact, as we have already indicated, the learned Judge has given very good reasons for showing that the map does not appear to be accurate. Therefore, even if the map is held to be relevant its accuracy is not at all established; that is the conclusion of the learned Judge and Mr.Mukherjee has given us no satisfactory reasons for differing from the said conclusion.”
9. In view of this legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and the defendant for the purpose of local investigation under Order XXVI Rule 9 of the Code of Civil Procedure becomes relevant. In the present case, such exercise has not been done by any of the courts below and, therefore, the map appended with the plaint cannot be said to be an accurate map. On thoughtful consideration of the matter, it appears that there is no error of law in the judgment of the appellate Court and no case has been made out for interference. Consequently, I am of the considered view that no substantial question of law or fact is involved in this second appeal and, therefore, it stands dismissed. No costs.