1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.117 OF 2008 with CIVIL APPLICATION NO.12865/2008. Sheikh Jammu Noor Mohammad s/o Shah Mohammad. ­ APPELLANT VERSUS 1) Baburao s/o Bashettiappa Nakade and others. ­ RESPONDENTS ***** Mr.SV Natu Advocate for Appellant; Mr.CR Deshpande, Advocate for Respondent No.1. ­­­­­ CORAM : K.U.CHANDIWAL, J. DATE : 9th February, 2010. PER COURT : 1) Heard. The matter is finally heard at admission stage. 2) The order of remand recorded by learned Ad hoc District Judge 3rd, Latur in Regular Civil Appeal No.144/2006 on 23rd September, 2008, is assailed by the defendants/respondents in the First Appeal. 2 3) It is a matter of record, in the present Appeal from Order, Respondent no.4 and 5 are not served, however, Respondent Nos. 4 and 5 are deleted. 4) A suit simplicitor came to be filed by the plaintiff staking claim to land Gut No. 464 admeasuring 0.92 R. situated at village Chakur. The plaintiff alleged that the defendant tried to interfere in his possession from southern side by putting boundary marks on the basis of false and bogus sale­deed executed by defendant no.2 in favour of defendant no.1. 5) This was disputed by pleadings/defence. The learned Trial Judge, on the issues recorded a negative finding about the plaintiff proving title and possession to the suit land and about the defendant’s causing obstruction. Consequently, the suit was dismissed. This order was carried by the aggrieved plaintiff before the first Appellate court in the above referred appeal and the learned first Appellate court observed in paragraph 8, that there is an alleged encroachment by the defendants over the property and consequently, the application for getting the lands measured moved in terms of Exhibit­44 should have been considered by the learned Trial 3 Judge. 6) It is a matter of record, there is a negative finding, as stated above against the plaintiff. The learned first Appellate court did not refer to setting aside those findings by assigning any cogent and legal reasons. He believed that it is a matter involving encroachment on the property of the plaintiff and the request of appointing Cadestral Surveyor for measurement being turned down, he felt necessity demands to get the land measured from the Cadestral Surveyor. This approach, certainly was unwarranted. 7) The plaintiff having come to the Court with a simplicitor injunction, without asking for removal of so­called encroachment, it was not within the realm of the appellate court to remand the matter. 8) The order of the learned Ad hoc Additional District Judge dated 23rd September, 2008 is set aside. The Appeal from Order allowed. CA disposed of. No costs. The learned Ad hoc District Judge will hear the appeal on its own merits afresh. The parties shall appear before the learned Judge on 12th March, 2010. 4 9) It is clarified, this Court has not observed anything on merits of the matter. (K.U.CHANDIWAL) JUDGE bdv/AO117.08