1 Second Appeal No. 1612.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 1612 OF 2004 Narhari S/o Nivarati Garad & another .. APPELLANTS VERSUS Shahaji S/o Naryan Lomte ...RESPONDENT ... Shri S.S. Choudhari and S.N. Rodge , Advocates for the appellants CORAM : S.V. GANGAPURWALA, J. DATE : 29th November, 2010. PER COURT : This is defendant’s Second Appeal. The plaintiff had filed a suit for recovery of possession of an encroached area. The suit came to be dismissed. The plaintiff preferred an appeal, in appeal the appellate Court decreed the suit and directed the defendants to hand over the possession of the encroached area to the plaintiff as shown in the map. The defendants have assailed the judgment and decree in the present Second Appeal. 2 Second Appeal No. 1612.04 2. Shri S.S. Choudhari, learned Counsel for the appellant contended that the measurement map which is filed in the Court below could not have been the basis of passing a decree by the lower appellate Court. The trial Court on the basis of anomaly in the measurement had discarded the said measurement and dismissed the suit but the appellate Court without considering the said aspect has decreed the suit. 3. Per contra, Shri Tikle, the learned Counsel for the respondent submitted that, the measurement has been carried in presence of defendant, defendant has signed on it, and the said anomaly would not be sufficient to discard the said measurement. Even the record of consolidation was before the surveyor on the basis of which the surveyor has measured the property. 5. In the facts and circumstances of the case, following substantial question of law arises :- “1] Whether the measurement carried 3 Second Appeal No. 1612.04 out by the cadestral Surveyor could have been relied upon to prove the alleged encroachment? 6. Admit. At this stage, the learned Counsel for the respective parties, agree for final disposal of the appeal. 7. With the assistance of learned Counsel for the respective parties I have gone through the judgments passed by both the Courts below and the record. 8. The fact that the plaintiff is the owner of 1 Acre and 17 Gunthas is established by both the Courts. It has been held that the plaintiff is owner of block No. 162 to the extent of 1 Acre & 17 Gunthas. The only question is whether the encroachment as alleged has been proved by the plaintiff. The defendant No. 1 is owner of block No. 150 situated towards northern side and defendant No. 2 is owner of block No. 161, situated towards southern and western side of the suit land. 4 Second Appeal No. 1612.04 9. The Trial Court on appreciation of evidence of the cadestral surveyor Mr. Gaikwad has come to the conclusion that the said plaintiff has failed to prove the said encroachment, the measurement could not have been relied upon in absence of Toch-Tipan either of block No. 162 or other blocks. But the Appellate Court without considering the said anomaly has relied on the measurement carried by Shri Gaikwad and has passed the decree. In absence of the relevant record, the measurement could not have been properly done. The encroachment can be proved only on the measurement carried out by expert i.e. the cadestral surveyor. The said measurement has to be proved without any irregularity so as to come to the exact conclusion of the encroachment alleged. 10. In the light of the above, I quash and set aside the Judgments of both the courts and relegate the parties to the Trial Court, the Trial Court shall appoint the competant Taluka Inspector of Land Records to measure the land 5 Second Appeal No. 1612.04 block No. 161, 162 and 150, owned by respective parties, and the aid Taluka Inspector of Land Records shall measure all these block numbers in presence of the parties and on the basis of relevant record. 11. It is made clear that the issue to the extent that the plaintiff is the owner of 1 Acre and 17 Guntha of land bearing Gut No. 162 is upheld and the said issue need not be again re- agitated. The parties agree to appear before the Trial Court on 21st December, 2010. The Trial Court shall, thereafter decide the said suit within a period of six months. The Second Appeal is disposed of on above terms. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*725.10SA 291110