:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.512 OF 2008 SECOND APPEAL NO.512 OF 2008 SECOND APPEAL NO.512 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.1157 OF 2008 CIVIL APPLICATION NO.1157 OF 2008 CIVIL APPLICATION NO.1157 OF 2008 Mr.Maruti Parbati Jadhav ...Appellant. v. Khandala Vibhag Shikshan Samiti, Khandala ...Respondents. Mr.B.K.Barve alongwith Sandeep Barve and Rajesh Jadhav i/by B.K.Barve and Co. , advs. for the Appellant. Mr.M.P.Pawar , adv. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 6th August, 2008. DATE: 6th August, 2008. DATE: 6th August, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for both the parties. 2. The appellant before this Court is the original plaintiff. Admittedly plaintiff is owner of the land gat no.8, while the respondent/defendants are the owners of land gat no.10. These two lands are situated adjoining each other. Between the two lands, there is a bandh covering area of about 4 R. The dispute is about the title over the land under the bandh. According to the plaintiff, the said bandh is part and parcel of gat no.8. However, according to the defendants, it is part and parcel of the land gat no.10. The plaintiff had got the land measured and as per the measurement report, the disputed bandh is part of the land gat no.8. The :2: defendants filed BND application before the Tehsildar. That application was decided in favour of the defendants. Against that the plaintiff had preferred an appeal before the Collector. The appeal was also dismissed. In view of these circumstances, plaintiff filed suit seeking declaration that the proceeding in BND application no.8 of 1986 and the appeal were ab-initio void. 3. Initially, he sought declaration that he is the owner of the suit land and he also sought direction that the defendant no.1 should not take possession of the property on the basis of order passed in BND application no. 8 of 1986. The suit was contested by the defendant no.1 by filing written statement denying all the contentions. During the pendency of the suit, revenue authorities put the defendant no.1 in possession of the suit land. 4. After hearing the parties, the trial Court declared that order passed in BND application no. 8 of 1986 is void as the Tehsildar has no jurisdiction and in the result, the order passed in appeal is also not binding. However, the trial Court found that the evidence of the surveyor was not reliable because he had not measured the land properly with the help of Tippan. The trial Court found that during the pendency of the suit, possession of the suit land was already given to :3: the defendant no.1 and, therefore, mere order of injunction restraining the defendant no.1 from taking possession could not be passed. With this, the suit was partly decreed only in respect of declaration pertaining to BND proceeding but the suit for perpetual injunction was dismissed. Against dismissal of the suit, the plaintiff preferred Regular Civil Appeal No.319 of 1999. The appeal came to be dismissed mainly on the ground that the plaintiff had already lost the possession and therefore, he could not get the injunction. Hence, the Plaintiff has filed the second appeal. 5. From the findings of the Courts below, it is clear that the order passed by the Tehsildar in BND proceeding was found without jurisdiction and authority and in the result, order passed by the Collector in appeal was also of no effect. Admittedly, revenue authority had put the defendant no.1 in possession of the suit land on the basis of that order in BND proceeding, during pendency of the suit. In fact, after the defendant no.1 was put in possession, the plaintiff should have made an amendment to the plaint seeking relief of possession also and it appears that the plaintiff lost the suit merely because there was no prayer for possession. It also appears that the trial Court came to conclusion that the surveyor had not measured the land properly. In such circumstances, the trial Court should have appointed the District Inspector :4: Land Record as a Court commissioner for fresh measurement but that was not done. This has resulted in injustice. In the given circumstances, the learned counsel for the plaintiff/appellant makes a request that the matter needs to be remanded back to the trial Court with liberty to the plaintiff to make amendment in the plaint and also with a direction to the trial Court to appoint District Inspector, Land Record, Satara as a Court Commissioner for fresh measurement so that the rights of the parties on the property may be properly decided. The learned counsel for the respondent no.1 could not give any valid reasons to oppose this prayer. In my considered opinion, it will be in the interest of justice to dispose off this appeal with the following directions: i. Appeal is allowed. Judgments passed by both the Courts below are hereby set aside. Regular Civil Suit No.27 of 1988 is hereby remanded back to the Civil Judge Junior Division, Khandala, District: Satara with direction that the plaintiff shall be allowed to make appropriate amendment in the plaint seeking relief of possession of the suit property within six weeks from this day. The defendants shall also be at liberty to make consequential amendment in their written statement within four weeks thereafter. ii. The trial Court shall appoint District :5: Inspector, Land Record as a commissioner for fresh measurement of land gat nos.8 and 10 on the basis of original record to come to a specific finding as to whether land under the disputed bandh is a part of the land gat no.8 or gat no.10. The cost of the commissioner shall be paid by the plaintiff however, it shall be treated as cost of the suit. The commissioner shall submit a report within three months from the date of receipt of the order of the appointment. The trial Court shall expedite the hearing of the suit and dispose off the same as far as possible within one year from this date. There shall be no order as to costs in this appeal. 6. As the appeal itself is disposed off, civil application does not survive and stands disposed off accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)