1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.743 OF 2008 Gangabai w/o Pandu Nagare, Age: 75 years, Occ: Agril., R/o. Yelegaon Tukaram, Tq. Kallamnuri Dist. Hingoli. .. Appellant Versus Shriram s/o. Nanarao Nagare, Age: 65 years, Occ: Agril., R/o. Yelegaon Tukaram, Tq. Kallamnuri Dist. Hingoli. .. Respondent ... Mr. Santosh T. Ghute, Advocate for the appellant. Mr. M.M. Ambhore, Advocate for respondent sole. ... CORAM : K.K. TATED, J. DATE : 17th JULY, 2009. PER COURT : 1. Heard learned Counsel for the parties. 2. Original plaintiff preferred present Second Appeal against the judgment and decree dated 28-08-2007 passed by Ad hoc District Judge, 2 Hingoli in R.C.A. No. 37/2002 , arising out of the judgment and decree dated 25-07-2002 passed by the Civil Judge, J.D. Kalamnuri in R.C.S. No. 65/1998. 3. The plaintiff filed suit for recovery of 23 Ares land. It is the case of the plaintiff that she is the owner of field Gat No. 407 situated at village Yelegaon Tukaram Tq. Kalamnuri District Hingoli. The field of the defendant is adjoining to the northern side of the field of the plaintiff. In February 1996 the defendant committed encroachment in the land of the plaintiff by breaking common dhura. The plaintiff got measured the land through the agency of T.I.L.R. and measurement was done on 20-03-1997. In the said measurement, it was found that the defendant committed encroachment of 23 Ares of land in the land of the plaintiff. Admittedly, the defendant is owner of Gat No. 408. The defendant filed his W.S. and denied these facts. 3 4. The trial Court by the judgment and decree dated 25-07-2002 decreed the suit and directed the defendant to hand over possession of 23 Ares of land of the plaintiff as shown in the map of surveyor Exhibit-38. The Appellate Court reversed the judgment and the decree passed by the trial Court on the ground that at the time of carrying out measurement, surveyor has not given notice of the measurement to the necessary parties. 5. The learned Counsel appearing on behalf of the plaintiff submitted that this is a fit case to remand back to the trial Court directing to appoint T.I.L.R. and / or Surveyor for fresh measurement of Gat No. 404 to 411 to find out the exact area of the plaintiff in Gat No. 407 and defendant's land Gat No. 408. 6. In support of his contention, the learned Counsel appearing on behalf of the plaintiff 4 relied on the authority in the matter of Ramchandra s/o Bhikaji Jagtap vs. Dudharam Langruji Padvekar dead through L.Rs. Bulkabai Padvekar and others, reported in 2004(1) Mh. L.J.278. In this case, High Court held that it is absolutely necessary that the City Surveyor ought to have been appointed when the question arose as to whether any encroachment had been made or not. Para 15 of the said judgment reads as under. "15. In view of aforesaid legal position, it appears to be absolutely necessary that the City Surveyor ought to have been appointed when the question arises as to whether any encroachment has been made or not. The appointment of City Surveyor or Cadastral Surveyor for taking joint measurement of the property owned by the plaintiff and the defendant for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure not only becomes relevant but appears to be absolutely essential for the just decision of the case." 5 7. Learned Counsel appearing on behalf of the plaintiff also relied on the authority in the matter of Kashinath Chindhuji Shashtri vs Haribhau Nathuji Bawanthade reported in 2004 (2) Mh.L.J. 722. In this case, High Court held that the Commissioner must be appointed by the Court to take joint measurement whenever there is a dispute about encroachment of the land. Para 6 and 9 of the said judgment read as under. "6. Bare reading of the aforesaid provision would reveal that the maps or plans made for the purpose of any cause must be proved to be accurate. The onus of proving that such a map is accurate lies on the party who produced it. The maps must be proved by the person who has prepared them. They are post litem motesa and lack necessary trustworthiness. Where the maps are made for the purpose of a suit there is, even apart from fraud which may exist, a tendency to colour, exaggerate and favour which can only be countenanced by swearing the maker to the trust of his plan. Hence, there is no presumption of accuracy in respect of the 6 map or plan which is made for a particular cause and it goes without saying that a map prepared for the purpose of a particular suit must, therefore, be duly proved and it is not admissible in evidence in absence of proof of its accuracy. In any case, in which there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and / or subsequent reference in the pleadings or judgment to place the mark on a map should be referred to this map which must be attached to the decree and signed by the Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case over all again. The map should be drawn with the North at the top and letters marking points should not be put inside ways or upside down. 9. In view of this legal position, it appears to be absolutely necessary that the Cadastral Surveyor ought to have been appointed by the trial Court for taking joint measurements of the properties owned by the respective parties. It is not in dispute that the plaintiff is the owner of agricultural field survey 7 No. 5/1-B whereas the defendant is the owner of agricultural field Survey No. 5/1. The appellate Court in its judgment clearly recorded a finding that there is no dispute between the parties as regards the area of the land held by the respective parties. But then it would reveal that neither the trial Court nor the appellate Court had appointed Commissioner under Order XXVI, Rule 9 of the Code of Civil Procedure for taking the joint measurements and, therefore, this Court is satisfied that this is a fit case for remand to the trial Court for fresh decision in accordance with law. The impugned judgment is set aside and the matter is remitted to the trial Court for fresh decision in accordance with law. The trial Court shall appoint the Cadastral Surveyor from the office of T.I.L.R. / D.I.L.R. as a Commissioner in the light of the observations mentioned above in this judgment. The learned Counsel for the defendant is ready to bear all the expenses for taking the joint measurement of the land owned by the respective parties. Hence, the Appeal is allowed and the matter is remanded to the trial Court for fresh decision according to law. The trial Court is also directed to give opportunity to both the sides to lead evidence after receipt 8 of the report as well as the joint measurement map drawn by the Commissioner. This Court expects that the trial Court shall decide the suit expeditiously, as far as possible within six months from the date of appearance of the parties before it. The parties are directed to appear before the trial Court on 12-1-2004." 8. In view of the above settled law, learned Counsel appearing on behalf of the defendants has no objection, if the matter is remanded to the trial Court for retrial, after appointing T.I.L.R. to carry out the measurements of land Gat No. 407 belonging to the plaintiff and land Gat No. 408 belonging to the defendant. The learned Counsel appearing on behalf of the plaintiff makes a statement that the entire measurement of old Survey No. 79 (Gat Nos. 404 to 411) will be carried out at the cost of the plaintiff. 9. In view of the matter, the appeal is allowed and following order is passed. 9 : O R D E R : (1) The judgment and decree of both the Courts are set aside. (2) The trial Court shall appoint Cadastral Surveyor from the office of the T.I.L.R. / D.I.L.R. as a Commissioner to carry out the measurement in respect of land Gat No. 407, old Survey No. 79 (Gat Nos. 404 to 411) and land Gat NO. 408, after following due process of law. (3) The plaintiff agreed to bear necessary expenses for carrying out the measurement of land old Survey No. 79 (Gat Nos. 404 to 411). (4) The trial Court is also directed to give an opportunity to both the parties to lead evidence after receipt of the report and map drawn by the Commissioner. 10 (5) Second Appeal is disposed of accordingly. No order as to costs. [ K.K. TATED, J.] sut/JUL09/sa743.08