1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO. 694 OF 2001 APPEAL FROM ORDER NO. 694 OF 2001 APPEAL FROM ORDER NO. 694 OF 2001 Shri Vyankatesh Raghunath Ranade & Anr. .. Appellants Versus Shri Gopvind Nagappa Naidu since deceased through Shri Ashok Govind Naidu & Ors. .. Respondents Mr. A.V.Anturkar, Advocate, a/w Mr. S.B.Deshmukh and Prathmesh Bharghude, Advocates, for the appellants Mr.P.B.Shah, Advocate, for the respondents Nos. 1 to 7. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 14th February,2008. DATE: 14th February,2008. DATE: 14th February,2008. P.C. P.C. P.C. 1. Heard learned Counsel for the parties. 2. The plaintiffs-respondents filed Regular Civil Suit No.28 of 1983 in the Court of Civil Judge, Junior Division, Wai, claiming that they are the owners of the suit property bearing Survey No.37/2 admeasuring 4 2 hectares 55 ares and the defendants, who are the appellants before this Court, hold their land to the south of the property of the plaintiffs. It was contended that the defendants had also purchased half of the land bearing Survey No.37 and is marked Survey No. 37/1, and the defendants have made encroachment on the property of the plaintiffs. 3. The defendants contested the suit contending that the vendor of the plaintiffs had only two annas share. There were several members of the Jangam family who had share in that property. Therefore, on the basis of the sale deed executed by the vendor of the plaintiffs, they did not get title over 8 anna share. Of course, the names of other members of the Jangam family who, according to the defendants, hold share in that land were not disclosed. The learned trial Court came to the conclusion that in view of the report prepared by the District Inspector of Land Records, the plaintiffs have failed to prove the encroachment on their land and the suit came to be dismissed. Thereafter, the plaintiffs preferred Regular Civil Appeal No.49 of 1995. That Appeal was allowed and the judgment of the trial Court was set aside. The appellate Court remanded the suit to the trial Court for fresh decision and directed to appoint Cadestral 3 Surveyor as a Commissioner in the light of the observations made in the judgment and to dispose of the matter accordingly. This order of remanding the matter to the trial Court has been challenged in the present Appeal by the original defendants. 4. After hearing the parties, I am convinced that the order passed by the appellate Court remanding the suit for fresh trial and for appointment of the Cadastral Surveyor as Commissioner needs no interference because that appears to be necessary for just and proper adjudication of the matter. However, at the same time, I find that the defendants may also be given an opportunity to amend the written statement so as to disclose the names of other members of the Jangam family who, according to them, have shares in this property, provided they have revenue record to support such contention. If such amendment is made by the defendants, the plaintiffs may be permitted by the trial Court to implead those persons also as parties in the suit. 5. The learned counsel for the plaintiffs points out that the previous Suit No.125 of 1980 filed by some members of the Jangam family against the present plaintiffs was dismissed and therefore that operates res 4 judicata. According to the learned Counsel for the defendants, all the claimants were not parties to that suit. Anyhow, both parties will have opportunity to raise the rival grounds before the trial Court and the plaintiffs may also take the plea of res judicata if available to them. 6. With the aforesaid observations, the Appeal stands dismissed. 7. The parties shall appear before the trial Court within two weeks from this date and the defendants, if they so desire, may produce the relevant record of rights and move an application for amendment in the written statement as per the above observations within one week thereafter. If the defendants make suchamendment in written statement, the plaintiffs shall also have liberty to implead such persons as parties in the suit by making amendment in the plaint within 2 weeks. 8. The learned trial Court shall endeavour to expedite the hearing and dispose of the Suit No.28 of 1983 as early as possible and preferably within one year 9. As the Appeal itself is disposed of, the C.A. 5 does not survive and stands disposed of. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)