Bombay High Court
SURESH BHANWARLAL JAIN AND ORSversusMAHMOOD MAZHAR KAZI THROUGH HIS POA, QUTUBUDDIN M. KAZI AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The trial court erred in rejecting the application and must order fresh measurements incorporating the sale deeds, with costs on the defendants.
Summary
The petitioners challenged a February 3, 2015 order of the Civil Judge, Junior Division, Mangaon that rejected their application for fresh land measurements. They argued that the Court Commissioner had prepared the measurement map solely on the basis of possession, contrary to the October 7, 2013 order which required consideration of the parties' sale deeds. The respondents, represented by the original plaintiff, also expressed dissatisfaction with the map and insisted that the sale deed dated October 15, 1984, and subsequent deeds be taken into account. The High Court held that the trial court should have allowed the application for a fresh survey and set aside the impugned order. Accordingly, the Court directed that fresh measurements be conducted, incorporating all relevant sale deeds, and that the defendants bear the entire cost, with no order as to costs.
Issues considered
- Whether the trial court erred in rejecting the application for fresh measurements under the directions of the October 7, 2013 order
- Whether the Court Commissioner must consider the parties' sale deeds while preparing the measurement map
- Whether the cost of the fresh measurements should be borne by the defendants
Subjects
- fresh measurement
- court commissioner
- sale deed
- civil procedure
- writ petition
- cost allocation
Judgment
2026:BHC-AS:36373
Megha 22_wp_1960_2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1960 OF 2018
Suresh Bhanwarlal Jain and Ors. ...Petitioners
V/s.
Mahmood Mazhar Kazi and Ors. ...Respondents
________________
Mr. C.G. Gavnekar (through vc) with Mr. Ashutosh Gavnekar and Mr.
Rohit Parab for the Petitioners.
Mr. D.G. Dhanure for Respondent No.1.
________________
CORAM: SANDEEP V. MARNE, J.
DATED: 2 SEPTEMBER 2026.
P.C.:
1) The Petition challenges order dated 3 February 2015 passed by
the Civil Judge, Junior Division, Mangaon, rejecting the Application filed
by the Defendants at Exhibit-68 for conduct of fresh measurements on
account of failure on the part of the Court Commissioner to conduct
measurements in accordance with order dated 7 October 2013.
2) Mr. Gavnekar, the learned counsel appearing for the Petitioners
submits that the Court Commissioner (TILR) has prepared the map only
on the basis of possession, which was not mandated to him under order
dated 7 October 2013.
Page No.1 of 2
2 September 2026
Megha 22_wp_1960_2018
3) Mr. Dhanure, the learned counsel appearing for the original
Plaintiff submits that even the Plaintiff is not satisfied with the
measurements map prepared by TILR. He submits that even the
Plaintiff’s sale deed is required to be taken into consideration while
preparing fresh measurement map.
4) Since both the parties are desirous of conduct of fresh survey, in
my view, the Trial Court ought to have allowed Application at Exhibit-68.
5) The Petition accordingly succeeds. Order dated 3 February 2015 is
set aside. Application at Exhibit-68 is allowed in terms of prayers made
therein subject to the condition that the entire cost of measurements
shall be borne by the Defendants. While conducting the measurements,
the Court Commissioner shall keep in mind the directions issued in order
dated 7 October 2013 and shall take into consideration the Sale Deed
dated 15 October 1984, the Sale Deed executed in favour of the Plaintiffs
as well as Sale Deed executed in favour of the Defendants.
6) With the above directions, Writ Petition is allowed and disposed
of. There shall be no order as to costs.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab
Page No.2 of 2
Designation: PA To Honourable Judge 2 September 2026
Date: 05/09/2026 13:12:01
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