1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.478 OF 2008 Shri Laxman Daji pawar, Age 62 years, Occ. Agriculture, R/o. Shetphal Haveli, Taluka Indapur, District Pune. .. Appellant (Org. Plaintiff) Vs. Shri Vijay Tukaram Shinde, Age 30 years, Occ: Agriculture, R/o. Shetphal Haveli Taluka Indapur, District Pune. .. Respondent (Org.defendant) Mr.A.B.Avhad,Advocate, for the appellant. Mr. Vivek Salunke,Advocate, for the respondent CORAM: J.H.BHATIA,J. DATE : 1st October, 2009. JUDGMENT 1. Heard the learned Counsel. 2. Admitted facts are that land Gat No.45 situated at Village Shetphal Haveli, Taluka Indapur, District Pune belongs to the plaintiff/ appellant and land Gat No.46 situate at North side of Gat no.45 belongs to the defendant/respondent. The plaintiff got the land measured. In the first measurement, it was found that 2 the defendant had encroached upon 5 Ares of land from the suit land Gat No.45. In the second measurement, the area under encroachment was found to be 9 Ares. The plaintiff filed Regular Civil Suit No.201 of 1998 for removal of encroachment and possession. He filed an application dated 21.3.2001 Exhibit 22 for getting the land measured from superior officers. Such type of measurement is known as Super Nimtana. Admittedly, that application was allowed and the District Inspector of Land Records was appointed for Super Nimtana measurement of the said land Gat no.45 and the land Gat no.46 of the defendant and to submit a report along with the map. The defendant as per direction, deposited amount of Rs.3,500/- towards fees of the District Inspector of Land Records. It appears that the District Inspector of Land Records did not measure the land himself and delegated the responsibility to some Cadestral surveyor, who measured the land. The Cadestral Surveyor, who measured the property third time after the above quoted Court order, was not examined. The trial court decreed the suit for handing over possession of encroached portion as per the map Ex.47. The defendant challenged the said judgment and decree in Regular Civil Appeal No.125 of 2005. In the appeal also, a ground was taken that inspite of the order passed by the trial court, DILR had not carried out the Super Nimtana measurement of the land and thereby the defendant was deprived of an opportunity to prove that there was no encroachment. However, this 3 contention was rejected by the first appellate Court and the appeal came to be dismissed. 3. Following substantial questions of law arise in the present appeal :- Whether the District Inspector of Land Records had failed to discharge his responsibility of Super Nimtana measurement inspite of directions given by the trial Court and as a result whether the defendant was deprived of an opportunity to defend the suit properly and to establish that there was no encroachment on the suit land? 4. The learned Counsel for the defendant/appellant points out that the Commissioner and Director of Land Records had issued necessary instructions by Circular dated 3.7.1978 and dated 4.6.2001 in respect of supernimtana measurement and it was pointed out that whenever such application is made, it has to be decided just like an appeal under Section 247 of the Maharashtra Land Revenue Code. Therefore, it becomes the responsibility of the superior officer to carry out the measurement himself and to come to conclusion.The trial Court had clearly appointed District Inspector of Land Records for Super Nimtana measurement and to submit a report. In view of this, and the above referred two 4 circulars issued by the Director of Land Records, the District Inspector of Land Records was bound to measure th eland himself by following said circulars and to submit a report which he did not. In the present case, it is clear that the District Inspector of Land Records did not follow the instructions given by the Commissioner and Director of Land Records by he above referred two circulars and instead of himself carrying out the Super Nimtana measurement, delegated the powers to the subordinate Cadestral Surveyor. This has prejudiced the defence of the defendant. Both the Courts below failed to consider this aspect and decided the suit and the appeal. It may be held that the defendant did not get proper opportunity to defend the suit properly. 5. Therefore, the Appeal is allowed. The impugned judgment and decree passed by the trial Court as well as the judgment of the first appellate Court are hereby set aside. The Regular Civil Suit no.201 of 1998 is hereby remanded back to the Civil Judge, Junior Division, Indapur, with a direction to the District Inspector of Land Records, Pune, to carry out Super Nimtana measurement on land Gat No.45 and land Gat no.46 himself as per the instructions given by the Director of Land Records in the circulars dated 3.7.1978 and 4.6.2001 and to submit a report to the Civil Judge, Junior Division, Indapur, within three months from the date of receipt of the order. Thereafter, the trial 5 Court, after recording the evidence of the DILR, if necessary, decide the suit afresh. As the necessary fees was already deposited previously and the DILR had not complied with the directions, the defendant will not be required to deposit the fees again. 6. The learned Counsel for the parties make a statement that no more evidence will be needed by them. The trial Court shall endeavour to dispose of the suit as early as possible and preferably by the end of April, 2010. 7. As the Appeal itself is disposed of, C.A. No.1171 of 2008 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)