1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3050 OF 2004. Pandurangrao S/o Ambadasrao Ratnalikar ... Petitioner. Versus Bansilal S/o Shivnath (died) through its L.Rs. Satyanarayan S/o Ramjiwan Inani deceased through L.Rs. Jagdish Prasad S/o Ramjivan Inani and others ... Respondents. ... Mr.S.P.Deshmukh, advocate holding for Mrs.C.S.Deshmukh, advocate for the petitioner. Mr.A.G.Godhamgaonkar, advocate for Respondent Nos.1,2, 5 to 8. Respondent Nos.1A,1B and 2 served. ... CORAM : V.R.KINGAONKAR,J. Date : 23.06.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2 2. The petitioner is original plaintiff who filed suit for declaration and possession in respect of lands bearing S.No.200/2, 200/3, including a open plot comprising of 30x60 ft. The suit (RCS No.130/78) came to be decreed only to the extent of declaration of ownership. Still, however, the decree for possession of the open plot was refused on the ground that topography thereof was properly described and there was certain obscurity in the location. The petitioner filed appeal (RCA No.161/83) to the extent of refusal of the decree for possession. In his appeal, he filed an application for amendment of the plaint and claim clause with a view to clarify the actual location of the open site of which possession was sought. He stated that he got measured the land and could thereafter locate the open site of which the possession was sought after dismantling structure which was raised therein. 3. The amendment application was objected to by the Respondents. The learned 4th Additional District Judge, Nanded held that the 3 petitioner had not given area of land S.No.200/2 in the plaint. He further held that thee is no sufficient record to show that the land was measured after giving due notice to the Respondents/defendants. He further noticed that the measurement map sought to be placed on record would show that the portion marked by letters A,B and C was in excess of the actual suit property which was originally described and, therefore, more area was being claimed than what was the subject matter of the suit. It is for such reasons that the application came to be dismissed. 4. Heard learned counsel for the parties. 5. At the threshold, it may be mentioned that when the petition was placed for admission, ad-interim relief in terms of prayer clause (E) was granted on 2.8.2004 and the interim relief is still operating. In the meanwhile, it appears that by order dated 26.6.2006, the appeal itself is dismissed in default by the learned Additional District Judge. There is, however, little doubt 4 about the date of such dismissal. Faced with this difficulty, Mr.S.P.Deshmukh, learned advocate would submit that he would advise the petitioner to take appropriate steps for setting aside the order of dismissal inasmuch as the petitioner is not aware about the same and may be that the dismissal in default is due to lack of knowledge regarding the interim stay granted by this Court to the proceedings of the First Appeal. If the dismissal in default is before grant of the interim stay order then perhaps there may be difficulty for the petitioner to seek restoration due to lapse of considerable time. No opinion on the merit, however, is expressed as regards legality of restoration application which is likely to be filed by the petitioner. The first appellate Court may duly considered the said application if it is so filed. 6. So far as merits of the petitioner are concerned, it may be gathered that the property was already described by the petitioner (plaintiff) by means of abuttals. What is 5 required U/o VII Rule 3 of the C.P.C. is that where there is immovable property involved, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey. There is Bombay Amendment to Rule 3 which makes it amply clear that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In case of encroachment a sketch showing as approximately as possible the location and extent of encroachment shall also be filed alongwith the plaint. It is worthy to be mentioned that exact area of encroachment need not be shown in such a rough sketch. By approximation the encroached area is required to be shown as required under Rule 3. Obviously, if after measurement some more land is shown in the map produced by the petitioner then it could not be regarded as a 6 ground to decline the request for amendment of the plaint. The first appellate Court is the final Court of facts. The duty of the first appellate Court is to see that the claim is not frustrated on account of technicality. The amendment was necessary in order to grant meaningful decree. It need not be emphasised that the first appellate Court has the powers to record further evidence U/o 41 Rule 27 of the C.P.C. in an appropriate case. The fact finding process does not come to an end only at the level of the trial Court inasmuch as the appeal is continuation of the suit proceedings. In this view of the matter, the learned Additional District Judge ought to have granted the application for amendment of the plaint. The impugned order does not stand to reason and is somewhat arbitrary. 7. For the reasons afore-stated, the petition is allowed. The impugned order is quashed. Rule is made absolute, of-course, subject to the restoration of the appeal if it has been so dismissed and not already restored. 7 No costs. (V.R.KINGAONKAR,J.) asp/office/wp305004