1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.842 OF 2005 Krishna Sopan Gangathade & Ors. ...Appellants. v. Sambhaji Maruti Jadhav Since deceased 1A) Dhondubai Sambhaji Jadhav & Ors. ...Respondents. Mr.Machhindra Patil, adv. For the Appellants. Mr.Prakash Mahadik, adv. For the Respondent No.1-A. CORAM : J.H. BHATIA, J. DATED : 31st July , 2009 P.C. 1 Heard the learned counsel for the Parties. 2 The appellants before this Court are the original plaintiffs. They claimed to be owners of suit land gat no.292 admeasuring 92R situated at village: Sangewadi, Taluka:Sangoda. To the eastern side of the suit land, there is land gat no.291/1 and 291/2 belonging to the defendants. According to the plaintiffs, a bandh and boundary marks existed between the field of the plaintiffs and that of the defendants. In 1995, defendants removed that Bandh and encroached upon the land of the plaintiffs. He got the land measured and after the measurement in 1987, it was revealed that defendants had encroached upon the land of 2 the plaintiffs to the extent of 13 R. Therefore, plaintiffs filed regular civil suit no.105 of 1988 for removal of encroachment and for possession of 13 acres of land. Defendants denied any encroachment by them. The trial Court relied upon the evidence of cadestral surveyor and the map prepared by him and came to conclusion that defendants had encroached upon the land of the plaintiff to the extent of 12 R and accordingly, suit was decreed. Defendants challenged that judgment and decree in Regular Civil Appeal No.157/01. The appellate Court set aside the judgment of the trial Court and dismissed the suit. The Appellate Court noted that as per the evidence of the Cadestral Surveyor, Tipan book and record of Phalani were not available and, therefore, he had taken measurement on the basis of gat maps. Measurements had taken place in 1987. The appellate Court noted that the defendant no.1 had obtained certified copies of the Tipan book and the phalani map on 15.12.2003 and 18.6.2002, which revealed that these records were available and this would falsify the statement of the Cadestral Surveyor. As these records were not taken into consideration at the time of measurement, evidence of the cadestral surveyor was not found to be reliable. 3 After hearing the parties and perusal of the impugned judgments, It appears that mistake was committed by the Cadestral 3 Surveyor in not taking into consideration Tipan book and record of Falani for which plaintiffs can not be held responsible. Therefore, interest of justice requires that property be measured again. 4 In my considered opinion, following order will meet the ends of justice: i The judgment of the trial Court as well as the Appellate Court are hereby set aside. The Regular Civil Suit No.105/88 is hereby remanded back to the trial Court with the direction that D.I.L.R. be appointed to measure the land gat no.292 belonging to the plaintiffs on the basis of records, particularly, Tipan Book and the record of Falani. D.I.L.R. may undertake the measurements himself or through any other cadestral surveyor appointed by him for this purpose and if he finds necessary, adjoining lands, particularly that of the defendants may be measured. Measurement shall be taken after notice to concerned parties. Cost of the measurement shall be initially deposited by the plaintiffs and eventually, it will become the cost in the suit. D.I.L.R. shall complete measurement and submit the report before the trial Court within 4 months from the date of the receipt of the order. Parties shall appear before the trial Court on 2nd September, 2009. 4 5 Appeal is allowed and stands disposed off accordingly. (J.H. BHATIA,J.)