( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 375 OF 2009 Bhagwanrao s/o Bhujangrao Maske and others. APPELLANTS VERSUS Kachru s/o Baban Sawale & others RESPONDENTS ..... Mr. P.S. Agrawal, advocate for the appellants. Mr. V.G. Mete, advocate for the respondents No. 1 to 3. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 18th November, 2009] PER COURT : 1. This second appeal arises out of contrary judgements rendered by the trial Court and the first Appellate Court. The respondents/original plaintiffs filed suit (R.C.S. No. 8/2001) for declaration of ownership and removal of encroachment made by the defendants (appellants). The trial Court partly decreed the suit. The plaintiffs No. 1 and 2 were declared to be owners of the suit land bearing Gat No. 169 to the extent of 1 hectare 21 Ares each. Still, however, ( 2 ) declaratory relief was denied to the plaintiff No. 3 in respect of land Gat No. 169 admeasuring 2 hectares and 31 Ares. The suit for removal of encroachment was also dismissed. Aggrieved thereby, the plaintiffs preferred appeal (R.C.A. No. 46/2005) which came to be allowed. The first Appellate Court held that the plaintiffs were entitled to seek declaration of ownership in respect of both the lands and also for removal of encroachment to the extent of 18 Ares land caused by the defendants being owners of land gat No. 165 and 12 Ares by the owners of land gat No. 164. The findings have been rendered by the first Appellate Court on the basis of the testimony of T.I.L.R. who carried out measurement of the lands of the plaintiffs. The report of Taluka Inspector of Land Records (PW4 Udhav) was relied upon by the first Appellate Court. 2. Heard learned counsel. By consent, this appeal is being finally disposed of at the stage of admission. 3. The trial Court came to the conclusion that identity of the alleged encroached portion could not be ( 3 ) established in view of certain deficiencies found in the version of PW4 Udhav. It is an admitted fact that the lands of the parties were not compositely measured. The issue of encroachment cannot be finally determined without composite measurement of all the concerned adjoining lands. It is necessary to identify the part of the property which is allegedly encroached. The plaintiff’s contention before the trial Court was that since about five (5) years before the suit, the defendants had gradually encroached over their suit lands. The learned Civil Judge observed that the version of the T.I.L.R. (PW4 Uddhav) could not be accepted because it was admitted by the plaintiff that the defendants are not cultivating their lands but their lands are used only for the purpose of grazing the cattles. In view of such admission, it was held that the defendants could not have brought any part of the plaintiff’s land under cultivation and there was distinction in the user of both the lands. It was also noticed by the trial Court that the measurement was carried out behind back of the defendants. ( 4 ) 4. It would be in the interest of justice to get the suit lands and the lands of the defendants measured compositely so as to identify the nature of encroachment, if any, and to verify the boundaries of their lands. Considering the fact that without any such composite measurement and when it was noticed that the measurement was carried out behind back of the appellants (defendants), I am inclined to hold that the impugned judgement rendered by the first Appellate Court deserves to be interfered with. 5. In the result, the appeal is allowed. The impugned judement is set aside. The matter is remanded to the first Appellate Court with direction that if the appellants (defendants) will deposit the required fees for composite measurement of all the abutting lands and the suit lands, the District Inspector of Land Records (D.I.L.R.) may be appointed as Court Commissioner and the composite measurement shall be directed to be carried out within period of four months thereafter. The parties may be allowed to adduce any further evidence in support of the rival claims in the appellate ( 5 ) Court and thereafter the appeal (R.C.A. No. 46/2005) shall be decided afresh. The said appeal be deemed as restored, if the appellants will deposit the necessary fees required for the composite measurement within period of six weeks. The plaintiffs also may be allowed to lead any evidence as may be deemed proper, in addition to the evidence which is already placed on record. The second appeal is accordingly allowed. The costs shall be in the cause. In case the appellants (defendants) will not deposit the amount of joint measurement within stipulated period, then the instant second appeal may be deemed as dismissed and the judgement of the first Appellate Court will stand confirmed. 6. In view of disposal of the second appeal, the civil application No. 5537/2009 stands disposed of. [ V.R. KINGAONKAR ] JUDGE NPJ/sa375-09 ( 6 )