1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 373 OF 2009 WITH CIVIL APPLICATION NO. 962 OF 2009 Bapusaheb Baburao Shedge .. Appellant Vs. Laxmibai Manohar Lokhande (since deceased through LRs.) .. Respondents Mr. Sugandh B. Deshmukh for the appellant Mr. S. R. Ganbavale i/b Sangramsinh Yadav for respondent Nos. 1 A to 1 I CORAM : S. J. KATHAWALLA, J. DATE : 4th November, 2009. P.C. 1. Appeal is admitted. The learned Advocate for respondent Nos. 1 A to 1 I waives service. By consent of the parties, appeal is taken up for hearing and final disposal forthwith. 2. Heard learned Counsel for the appellant as well as respondents. 3. The Appellant in the Appeal is the original defendant and the respondents are the original plaintiffs in the suit. 4. The present suit was filed by the plaintiffs for 2 possession of encroached area admeasuring 20 Ares and for consequential reliefs. The learned trial Judge after recording the evidence and hearing both the parties, came to the conclusion that the suit was liable to be dismissed, as the encroachment was not proved. The appeal was carried to the District Judge, Satara and the learned Addl. District Judge after hearing both the parties, allowed the appeal and directed the defendant to hand over the possession of the encroached portion to the plaintiffs. However, the learned Judge did not determine the extent of encroachment and held that the same can be determined at the time of execution of the decree. 5. The plaintiffs thereafter filed Second Appeal No. 33 of 2004. By an order dated 15th September, 2005 this Court allowed the said Second Appeal by setting aside the judgment and order passed by the Additional District Judge, Satara dated 19th September, 2003 and remanded the matter to the Additional District Judge, Satara with directions to hear the appeal on merits and also to determine the extent of encroachment made by the defendant on the plaintiffs’ property. 6. Thereafter, upon remand, the District Judge, Satara inter-alia raised the following issue :- 3 “Is it again open for this Court to decide that the defendant made encroachment on the land of the plaintiffs ?” The District Judge, Satara answered the said issue in the negative. The defendant being aggrieved therefrom filed the present Second Appeal impugning the Judgment of the District Judge, Satara dated 24th October, 2008. 7. The learned Advocate appearing for the appellant has submitted that by the order passed by this Court dated 15th September, 2005 the District Judge, Satara was specifically directed to decide the entire appeal on merits i.e. inclusive of the issue pertaining to the factum of encroachment. He has submitted that the learned Judge erred in framing the aforestated issue and by answering the same in the negative. In my view, the learned Advocate appearing for the appellant is correct. In view of the order passed by this Court dated 15th September, 2005, the learned District Judge, Satara ought to have decided the factum of encroachment afresh and ought not to have held that it is not open to decide the factum of encroachment. 8. In view thereof, the appeal is allowed and the decree and order passed by the District Judge, Satara dated 24.10.2008 is 4 set aside. The District Judge is once again directed to hear the appeal on merits on all the issues including the factum of encroachment and the extent of encroachment after giving notice to both the parties. Regular Civil Appeal No. 185 of 1996 shall be disposed of by the District Judge, Satara within a period of three months from the date of receipt of writ of this Court. 9. Registrar, High Court is directed to forward the necessary writ to the District Judge, Satara within a period of two weeks from today. 10. The Appeal is accordingly disposed of. Civil Application No. 962 of 2009 also stands disposed of. (S. J. KATHAWALLA, J)