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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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