MATADIN SURAJMAL RAJORIA (DECEASED) THROUGH SOLE LEGATEE LALITA SATYANARAYAN KHANDELAWALversusRAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. & ORS.

232                       [2021]
               SUPREME COURT     6 S.C.R. 232
                              REPORTS                     [2021] 6 S.C.R.


A      MATADIN SURAJMAL RAJORIA (DECEASED) THROUGH
      SOLE LEGATEE LALITA SATYANARAYAN KHANDELAWAL
                                       v.
        RAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. & ORS.
B                       (Civil Appeal No. 5847 of 2021)
                            SEPTEMBER 21, 2021
          [R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
             Civil Procedure – Appeal – Second Appeal – Suit filed for
      declaration, injunction and possession alleging encroachment on
C
      land by the defendants – Suit dismissed by trial Court – Decree
      affirmed by first appellate court – Second appeal by plaintiff –
      On direction of High Court, a surveyor/ Court Commissioner was
      appointed to measure the suit property; and on conclusion of the
      survey exercise, the first appellate court was ordered by the High
D     Court to certify the findings on encroachment as recorded by the
      trial court, in terms of Rule 470 of the Civil Manual – First
      Appellate Court reversed the findings of trial court and held that,
      as per the map prepared by the Court Commissioner, the defendants
      had committed encroachment – In view of such development, the
      High Court framed a substantial question of law for decision in
E
      the Second Appeal – Plaintiff ’s second appeal was however
      dismissed – Held: While concurrent findings of Courts below are
      not to be routinely interfered, on facts, there was a second round
      in the litigation and another substantial question of law was
      formulated by the High Court for adjudication of the second
F     appeal – However, no specific finding on such question of law was
      ever recorded in the impugned judgment – The High Court skirted
      the issue and instead endorsed the findings of the courts below to
      the effect that the defendants had not made any encroachment –
      The High Court erred in not recording a finding on the question
      of law formulated later, to account for the Court Surveyor’s report,
G
      vis-à-vis the legal battle over the suit land – Without the decision
      on the relevant aspect which goes to the root of the dispute, the
      impugned judgment fails the scrutiny of law – Matter remanded
      back to the High Court to consider and render a finding on the
      substantial question of law framed by the High Court itself.
H
                                      232
  MATADIN SURAJMAL RAJORIA (D) THR. SOLE LEGATEE LALITA SATYANARAYAN   233
              KHANDELAWAL v. RAMDWAR MAHAVIR PANDE (D)



      Allowing the appeal, the Court                                   A
       HELD: 1.1. While concurrent findings of Courts below are
not to be routinely interfered, it is seen that there was a second
round in the litigation and another substantial question of law
was formulated by the High Court for adjudication of the second
appeal. However, no specific finding on such question of law was       B
ever recorded in the impugned judgment. The High Court
skirted the issue and instead endorsed the findings of the courts
below to the effect that the defendants had not made any
encroachment, after the plaintiff purchased the land on
28.12.1995 under the Exhibit 47 Sale deed. The conclusion in           C
the second appeal was therefore devoid of any independent
finding on the substantial question of law formulated by the Court
itself on 2.5.2018. With the required finding on the additional
issue, a contrary conclusion favouring the other side, can’t
entirely be ruled out in the second appeal. This is particularly
possible because of the mismatch between the area under                D
occupation of the defendants and the smaller area covered in
their two sale deeds. The aspect of defendants occupation of
certain lands, being mentioned in the plaintiff’s sale deed, must
also weigh with the Court, in view of the fresh evidence
generated by the court appointed surveyor. [Para 10][237-E-H]          E
      1.2. The High Court erred in not recording a finding on
the question of law formulated later, to account for the Court
Surveyor’s report, vis-à-vis the legal battle over the suit land.
Without the decision on the relevant aspect which goes to the
root of the dispute, the impugned judgment fails the scrutiny of       F
law. [Para 11][238-A-B]
      2. The matter is remanded back to the High Court to
consider and render a finding on the substantial question of law
framed by the High Court itself. Regard being had for the long
pendency for the case and the restricted remand, the High Court        G
is requested to decide the second appeal expeditiously.[Para
12][238-C]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.5847
of 2021.
                                                                       H
234            SUPREME COURT REPORTS                         [2021] 6 S.C.R.


A           From the Judgment and Order dated 14.08.2018 of the High
      Court of Judicature at Bombay, Nagpur Bench, Nagpur in Second
      Appeal No.297 of 2013
            S. Niranjan Reddy, Sr. Adv., D. Abhinav Rao, Advs. for the
      Appellant.
B
           V. K. Shukla, Sr. Adv., Ms. Taruna Ardhendumauli Prasad, Rohit
      Pandey, Varad Dwivedi, Vaibhav Maheshwari, Ms. Vaishali Singh,
      Prabhu Singh, Gaurav Choudhary, Suhas Kumar Kadam M/s Black &
      White Solicitors, Advs. for the Respondents.
            The Judgment of the Court was delivered by
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            HRISHIKESH ROY, J.
            1. Heard Mr. S. Niranjan Reddy, learned senior counsel for the
      appellant. The respondents(defendants) are represented by Mr. V.K.
      Shukla, learned senior counsel.
D            2. Leave granted. The appellant now (represented by his
      daughter) filed the Civil Suit No.332/2003 alleging encroachment by the
      two defendants namely Ramdwar Mahavir Pande and Sudamadevi
      Pande. The plaintiff’s contention in the Suit was that on 28.12.1995,
      he had purchased land (measuring 1 Hectre 62 Acres) from Survey
E     No.25 within the municipal limits of Amravati, for consideration of
      Rs.2,10,000/. The sale deed (Exhibit 47) was executed through the
      plaintiff’s registered Power of Attorney holder and it was specified
      therein that a portion of the purchased land is encroached by Radhwar
      Pande and Sudamadevi Pande. According to the plaintiff, he measured
      his land on 23.11.2002 and learnt that the defendant no.1 had committed
F
      encroachment to the extent of 35 R from the Southern side while the
      defendant no.2 (related to the defendant no.1), had encroached about
      3 R land from the same Southern side of his land. Both defendants
      were asked to remove their encroachment by the plaintiff and his
      daughter but the defendants did not budge. Accordingly, the Suit came
G     to be filed for declaration, injunction and possession.
            3. In the written statement, the defendant no.1 claimed title over
      his occupied area on the basis of sale deed dated 17.04.1969(Exbt.
      66) executed by one Vitthalrao Nanwatkar. Likewise, the defendant
      no.2 claimed title over her occupied area, on the strength of the sale
H     deed dated 02.11.1977(Art.A), executed by one Shantabai Jaiswal. The
  MATADIN SURAJMAL RAJORIA (D) THR. SOLE LEGATEE LALITA SATYANARAYAN         235
     KHANDELAWAL v. RAMDWAR MAHAVIR PANDE (D) [HRISHIKESH ROY, J.]



defendants additionally contended that, M/s Edulji Dotimal Ginning and       A
Pressing Factory Ltd. earlier filed the Civil Suit No.413 of 1979 against
the defendant no.1 Ramdwar Mahavir Pande for removal of alleged
encroachment to the extent of 7798 square feet. But the said Suit by
M/s Edulji Dotimal was dismissed and the defendants continued in
uninterrupted possession.
                                                                             B
        4. The Trial Court on the basis of the evidence and the pleadings,
dismissed the suit on 1.9.2008 with the finding that plaintiff has failed
to prove that the defendants have encroached on his land and
accordingly relief was denied to the plaintiff. The basis for the verdict
favouring the defendants was because at the time of purchase, the
plaintiff was having knowledge that some portions of the purchased land      C
were in possession of two defendants since 1969. The learned trial
Judge noted in the judgment that the plaintiff failed to annexe any sketch
map indicating the projected encroachment by the defendants. On relief
being refused, the plaintiff filed the Civil Appeal No.199 of 2008 but
the learned Appellate Court endorsed the Trial Court’s decree, favouring     D
the defendants. The Court noted that the defendants are residing and
are possessing the disputed area, with the permission of predecessor
in title of the plaintiff and therefore, they cannot be categorized as
encroachers.
       5. The above lead to the Second Appeal No.297 of 2013 by the          E
plaintiff. The High Court in the said proceedings felt the necessity to
appoint a surveyor to measure the suit property, as described in the
respective sale deeds relied by the contesting litigants. By order dated
7.6.2016, High Court has called for a finding through Trial Court, on
the allegation of Encroachment made by the defendants, after carrying
out measurement on the basis of sale deeds (Exhibits 47,66), whereafter      F
one Amol Giri was appointed as the Surveyor/Court Commissioner for
joint measurement of the suit property. The Court Commissioner visited
the site on 28.11.2016 in Survey no. 25/4 in Village Mhasala and
prepared the measurement map (Exhibit 131), in presence of the parties.
The surveyor was examined before the Court on 5.7.2017 and on his            G
cross-examination, the following was elicited:
      “….It is correct to say that, according to the map, remaining 38
      Are land is in possession of Sudamadevi. 1 Are land means 1076
      Sq. Ft. 38 Are agricultural land means 40888 Sq. Ft area. As
      per sale deed at Exh.66, Sudamadevi Pande is owner of 2000             H
236            SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A           Sq. FT. The land highlighted with Green colour in the map is in
            possession of Sudamadevi Pande. The land in pink colour towards
            northern side of the map adjacent to NMLK letters if measured
            from green coloured land it comes to 2000 Sq. Ft. Similarly, if
            the lower side of the said colour if joined to green line towards
            western side, it will come to 2000 Sq. Ft. It appearsthat, the land
B
            in Map at Exh. 31 towards southern side of the land shown in
            pink colour at the northern side is encroached land. The six
            persons shown in the Map Exh. 31 were present at the time of
            measurement.”
             6. The High Court, on being informed of the conclusion of the
C     survey exercise, on 22.2.2018 ordered the Appellate Court to certify
      the 7.6.2016 findings on the encroachment recorded by the Trial Court,
      in terms of Rule 470 of the Civil Manual. Both parties were directed
      to present themselves before the Appellate Court for the ordered
      exercise. Following such direction, the first Appellate Court considered
D     the matter and vide its order dated 10.04.2018, reversed the findings
      of the Trial Court and held that, as per the map prepared by the Court
      Commissioner, the defendants had committed encroachment to an
      extent of land measuring 38 R (40888 square feet). In view of such
      development, on 2.5.2018 the High Court framed the following
      substantial question of law for the decision in the Second Appeal:-
E
            “Whether in the face of order dated 10.04.2018 passed by the
            appellate Court in pursuance of direction of this Court for
            appointment of Surveyor and carrying out measurement in the
            present case, the concurrent findings rendered by the two Courts
            below are sustainable?”
F
            7. The plaintiff’s second appeal was however dismissed and
      accordingly the impugned judgment favouring the defendants is
      challenged in this appeal.
             8. The learned Senior Counsel for the appellant Mr. S. Niranjan
G     Reddy submits that the High Court failed to appropriately consider the
      measurement map (Exhibit 131) and the deposition of the Court
      appointed Surveyor and thereby rendered an erroneous finding which
      overlooks the encroachment by the respondents- defendants. According
      to the appellant the recital in the plaintiff’s sale deed dated 28.12.1995
      (Exhibit 47) was misconstrued by the Court. It is also the say of the
H     counsel that the Court should have weighed the fact that the defendants
  MATADIN SURAJMAL RAJORIA (D) THR. SOLE LEGATEE LALITA SATYANARAYAN          237
     KHANDELAWAL v. RAMDWAR MAHAVIR PANDE (D) [HRISHIKESH ROY, J.]



claim on the basis of the respective sale deeds (dated 17.04.1969 and         A
2.11.1977) mismatch with the land under defendants occupation. The
area occupied measure 38R (40,888 sq. ft.) whereas this is not
compatible with the extent of land mentioned in the sale deeds relied
by the defendants. As such, it is argued that due credence should have
been given to the finding of the Court’s Surveyor that the defendants
                                                                              B
are in illegal possession of excess land.
        9. On the other hand, Mr. V.K. Shukla, learned Senior Counsel
refers to the concurrent findings in favour of the defendants by the Trial
Court, the Appellate Court and the High Court and argues that the
appeal in the present facts, is not to be entertained by this Court. For
                                                                              C
the defendants, the counsel refers to the plaintiff’s sale deed (Exhibit
47) to point out that the sale deed itself specifically mentioned the area
under occupation of the two defendants in the land purchased by the
plaintiff. It is therefore argued that the plaintiff on the basis of the
sale deed (Exhibit 47) can have no legitimate claim on the areas under
occupation of the defendants since before the sale transaction of the         D
plaintiff.
        10. The contention advanced by the rival counsel have been
considered. While concurrent findings of Courts below are not to be
routinely interfered, it is seen that there was a second round in the
litigation and another substantial question of law was formulated by the      E
High Court for adjudication of the second appeal. However, no specific
finding on such question of law was ever recorded in the impugned
judgment. The learned Judge skirted the issue and instead endorsed the
findings of the courts below to the effect that the defendants had not
made any encroachment, after the plaintiff purchased the land on              F
28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the second
appeal was therefore devoid of any independent finding on the
substantial question of law formulated by the Court itself on 2.5.2018.
With the required finding on the additional issue, a contrary conclusion
favouring the other side, can’t entirely be ruled out in the second appeal.
This is particularly possible because of the mismatch between the area        G
under occupation of the defendants and the smaller area covered in
their two sale deeds. The aspect of defendants occupation of certain
lands, being mentioned in the plaintiff’s sale deed, must also weigh with
the Court, in view of the fresh evidence generated by the court appointed
surveyor.                                                                     H
238             SUPREME COURT REPORTS                        [2021] 6 S.C.R.


A             11. The above has persuaded us to hold that the High Court erred
      in not recording a finding on the question of law formulated later, to
      account for the Court Surveyor’s report, vis-à-vis the legal battle over
      the suit land. Without the decision on the relevant aspect which goes
      to the root of the dispute, the impugned judgment in our assessment,
      fails the scrutiny of law.
B
             12. In view of the forgoing, we set aside the judgment dated
      14.8.2018 passed by the Bombay High Court, Nagpur Bench in the
      Second Appeal no.297/2013. The matter is remanded back to the High
      Court to consider and render a finding on the substantial question of
      law framed on 2.5.2018 by the learned Judge. It is ordered accordingly.
C     Regard being had for the long pendency for the case and the restricted
      remand, the High Court is requested to decide the second appeal
      expeditiously and preferably within six months of receipt of this order.
             13. The appeal is accordingly allowed without any order on costs.

D
      Bibhuti Bhushan Bose                                       Appeal allowed.




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