1 219 ao.258.06 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 258 OF 2006 Vishnu Ganpati Nimbalkar and another. ... Appellants Versus Shamrao Tukaram Sutar. ... Respondent ­­­­­ Mr. P.G.Karande for the Appellants. ­­­­­ CORAM : A.S.OKA, J. DATE : 02 nd May, 2011. ORAL JUDGMENT: 1 This appeal is called out for final hearing. Heard the learned counsel appearing for the Appellants. None appears for the Respondent though notice is served. 2 The challenge in this appeal is to the order of remand passed by the District Court. With a view to appreciate the submissions made by the learned counsel appearing for the Appellants, a reference will have to be made to the facts of the case. 2 219 ao.258.06 3 The Appellants are the original plaintiffs and the Respondent is the original defendant. The case made out by the Appellants is that they are the owners of land bearing Gat No.355 of village Pushpanagar, Taluka Bhudargad, District Kolhapur. The allegation in the suit is that on the western side of the aforesaid suit land, the Respondent is holding a land bearing Gat No.354. The allegation in the suit is that the Respondent encroached upon the suit land to the extent of 2.5 Ares. In the plaint, reliance has been placed on the measurement and survey carried out by a Survey Officer on 24 th November, 1999, which according to the Appellants shows that the Respondent has made encroachment to the extent of 2.5 Ares. The suit was contested by the Respondent. The trial Court relied upon the survey map prepared by the cadastral Surveyor and proceeded to pass a decree for removal of encroachment. 4 The Respondent preferred an appeal before the District Court in which the impugned order has been passed. By the impugned order, the suit has been remanded to the trial Court with following 3 219 ao.258.06 directions. “3. The matter is remanded to the lower Court for fresh decision in accordance with law. The trial Court shall appoint the cadastral surveyor from the office of T.LL.R. / D.LL.R. as a Commissioner for joint measurement of lands owned by plaintiffs and defendant, in the light of observation mentioned above in this judgment. Appellant / defendant to bear all the expenses for taking joint measurement of the land owned by the respective parties. 4. The lower Court shall give opportunity to both sides to lead the evidence after receipt of Commissioner's report with map.” 5 The learned counsel appearing for the Appellants submitted that the learned Adhoc Additional District Judge completely ignored that there was no application made by any of the parties for appointment of a Court Commissioner. He submitted that in fact, a specific contention canvassed before the District Court by the Appellants was that the survey map at Exhibit­24 prepared by the Survey Officer was duly proved before the trial Court by examining the said officer. He submitted that the law laid down by this Court in the cases of Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade (2004 (2) Mh.L.J 722) and Ramchandra s/o Bhikaji Jagtap Vs. Dudharam Langruji Padvekar 4 219 ao.258.06 dead through L.Rs. Bulkabai Padvekar and others (2004 (1) Mh.L.J. 278) has not been correctly read by the Appellate Court. He pointed out that though in the present case, there was a boundary dispute, but by following the procedure under the Maharashtra Land Revenue Code, 1966, the surveyor had already carried out measurement and survey. He submitted that the said survey proves the encroachment on the suit land. He submitted that when the said exercise was already done, there was no occasion for the Appellate Court for passing an order of remand for appointing T.I.L.R. /D.I.L.R. as Court Commissioner, who are the Survey Officers under the Maharashtra Land Revenue Code, 1966. He, therefore, submitted that the approach of the Appellate court was completely erroneous. 6 I have given careful consideration to the submissions. In the plaint, the Appellants have relied upon the application made to the Survey Officer on 3 rd December, 1998 and survey carried on 24 th November, 1999 by a Survey Officer. The said officer was examined as a witness by the Appellants and a finding has been recorded by the trial 5 219 ao.258.06 Court that the notice of the survey was issued to the concerned parties. 7 The law laid down by this Court in the cases of Kashinath Chindhuji Shastri (supra) and Ramchandra s/o Bhikaji Jagtap (supra) is that if there is a dispute regarding the boundary between two survey numbers, the same can be resolved only by a survey carried through a Survey Officer under the Maharashtra Land Revenue Code, 1966. In the present case, the survey was already carried out by a Survey Officer, on which reliance was placed by the trial Court and the decree was passed. Perusal of the judgment of the Appellate Court shows that there is no application made even by the Respondent for appointing T.I.L.R. / D.I.L.R. as a Court Commissioner. Hence, the impugned order of remand was completely misconceived and was not warranted at all. Hence, the said order will have to be set aside. However, the Appellate Court has not answered the points for determination arising on merits of the appeal and therefore, the Appellate Court will have to be directed to hear and decide the appeal afresh on the basis of the evidence which is already on record. 6 219 ao.258.06 8 Hence, I pass the following order: i. The impugned order dated 15 th October, 2003 is quashed and set aside ; ii. Regular Civil Appeal No.490 of 2003 is restored to the file of the District Court at Kolhapur ; iii. The Appellate Court shall decide the appeal afresh in the light of the observations made by this Court in this judgment ; iv. Interim relief, if any, operating during the pendency of the aforesaid appeal is also restored ; v. Hearing of the appeal is expedited and the Appellate Court shall endeavour to conclude the hearing of the appeal expeditiously ; vi. Appeal is partly allowed on above terms with not order as to costs ; vii. Civil Application No. 332 of 2006 does not survive and the same is disposed of. [ A.S.OKA, J ]