1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.152 OF 2009 WITH CA NO.10670/2009 Kishan s/o Hariba Kamble and Ors. - APPELLANTS VERSUS Basling s/o Bhimrao Birajdar - RESPONDENT ***** Mr. VV Solshe, Advocate for Appellants; Mr.AM Mukhedkar, Advocate h/for Mr.LC Patil, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 12th January, 2010. PER COURT : 1) Heard. 2) The aggrieved appellants by order of the learned Additional District Judge, Omerga dated 24.3.2005, remanding the suit to the trial court for re-trial, assail the same. Though the learned Additional District Judge, has observed in paragraph 9 of the judgment that there were houses of 12 persons adjacent to the land block 2 no.109, however, the Cadestral Surveyor did not issue notices to such 12 persons, but such notices were issued to 7 persons. No notice was issued to Gram Panchayat, though the houses were situated on the Gram Panchayat property. The learned Judge of the trial Court held in the above scenario that the measurement was vague and defective, the learned Additional District Judge found that such observation is not erroneous. However, the learned District Judge found and correctly that the mistakes are committed by the Cadestral Surveyor, who has left the defects in the measurement, for which the plaintiff(Respondent herein) should not be blamed. In the above scenario, the learned District Judge directed to cause measurement of the property by appointing Commissioner of T.I.L.R. at the expense of the appellants for carrying out the measurement of Block No.109 and adjoining lands to ascertain encroachment on Block No. 109, if any. This order of the learned Additional District Judge, Omerga, in the fact situation, cannot be said to be erroneous or beyond the scope of powers conferred in the learned Additional District Judge. 3) Reference to Section 99 of the Code of Civil Procedure by the learned Counsel, will not be available to be coined, as apparently Section 3 99 of CPC contemplate that the Appellate court can correct a mistake, which affects the merits of the case. In the instant case,apparently the defects caused by the Cadestral Surveyor, without effecting service to the adjoining landholders have affected the merits of the case. The learned counsel for the appellants relied on the Judgment in the matter of Subhash Vithalrao Gatlewar and Ors. Vs. Dattatraya Keshavrao Shinde, deceased through L.Rs. Ramesh Dattatraya Shinde and Ors. (2005 (1) Mah.L.J. 43). It was a matter of Second Appeal. The matter was taken by original plaintiff before the District Judge as RCA No. 38/1983. The District Judge decided the appeal by allowing the same and reversed the decree of the trial Judge. No such eventuality of either measurement or infraction of Section 99 of CPC, is reflected in the said Judgment. 4) No irregularities or illegalities are committed by the learned Additional District Judge. The Appeal from order sans merit, it is dismissed with CA. No costs. (K.U.CHANDIWAL) JUDGE bdv/AO152.09