1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 10. APPEAL FROM ORDER NO.127/2009 (UMAJI SATWAJI SHEP V/S PATLOBA RAMRAO SHEP And oths) With CA/11498/2009 In AO/127/2009 -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. S.V.Natu, Adv., for the appellant. Mr. V.D.Salunke, Adv., for respondent nos. 2/1 to 2/4. ... CORAM: K.U.CHANDIWAL, J. DATE:18/11/2010 1. Heard finally. 2. RCS No.447/1980 was dismissed on 17.7.1995. The plaintiffs preferred appeal before the learned District Judge-II, at Ambejogai, being RCA No. 191/1995. The learned District Judge, by the impugned judgment, directed remand of the said Regular Civil Suit with indication as spelt out in clause (4) of the order which reads as under: 2 " The Lower Court to give an opportunity to the plaintiff's to comply for appointment of Commissioner from the T.I.L.R. Office. Surveyor and the Surveyor shall carry out joint measurement not only on the basis of the title deeds but also entries recorded in the property register, sale deeds and the map maintained in the office of the Land Record and thereafter to decide the suit afresh. " The judgment of the learned District Judge is impugned herein. 3. At paragraph no.12 of judgment the Joint Civil Judge, Junior Division, recorded that by virtue of two sale deeds dt. 7.6.1984, plaintiffs have sold their lands to Ganpat Vyas and Ramlala and, consequently, the plaintiffs ceased to be the owner of the property. Even if this is after institution of the suit, it was for the plaintiff to have made necessary arrangements to bring persons interested in the property. 3 4. Based on appointment of Cadestral Surveyor, the lands were measured. The learned Civil Judge, Senior Division, did not find favour with the report of the Cadestral Surveyor and negated contentions of plaintiff of encroachment. The learned District Judge though endorsed this finding and also observed that the plaintiff has not come with clean hands, still, felt that in the fitness of circumstances, it was imperative to have a joint measurement. Nobody requested the learned District Judge to have such an exercise but it was use of discretion taking recourse to Order 26 Rule 9 of C.P.C. 5. Considering the age of the litigation and also the fact that the parties already traveled to the area of measurement, it was not open and expected of the learned 4 District Judge to direct re- measurement, when the plaintiff has not come with clean hands. Exercise of discretion in such scenario was uncalled for. 6. I do not wish to deal with the judgment in the matter of Girish Vasantrao Bhoyar and another Vs. Nimbaji Warluji Bambal ( 2009(4) Mh.L.J.) 371) as the events therein will barely match to the facts in the present case. 7. The plaintiff having lost interest in the matter, had a jolt to his claim. This is also lost track of by the learned District Judge. The learned District Judge did not consider other avenues in the matter as it did not deal with it and simply remanded the matter which is inconceivable. Consequently, the order of remand by the learned District Judge calls for interference. It is set aside. Dismissal 5 of RCS No.447/1980 dt. 17-7-1995 is confirmed. No costs. Civil Appplication disposed of. (K.U.CHANDIWAL) JUDGE ... AGP/127-09ao