( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 89 OF 2008 WITH CIVIL APPLICATION NOS. 2895 of 2009 & CIVIL APPLICATION NOS. 9606 of 2009 WITH APPEAL FROM ORDER NO. 90 OF 2008 WITH CIVIL APPLICATION NOS. 2896 of 2009 & CIVIL APPLICATION NOS. 9607 of 2009 * * * * * APPEAL FROM ORDER NO. 89 OF 2008 Shankar s/o. Nana Wale and anr. .. Appellants Versus Bapurao s/o. Ramkrishna Raut and ors. .. Respondents WITH APPEAL FROM ORDER NO. 90 OF 2008 Radhakisan Gangadhar Wale and anr. .. Appellants Versus Bapurao s/o. Ramkrishna Raut and ors. .. Respondents Shri R.N. Dhorde, Advocate for the appellants. Shri R.D. Bhalerao, Advocate for respondent Nos. 1 to 3. ( 2 ) CORAM : P.R. BORKAR,J. DATED : 27.07.2009 P.C. :- 1. Heard Shri R.N. Dhorde, Advocate for the appellants and Shri R.D. Bhalerao, Advocate for the respondents, in both the Appeals From Order. 2. Today Appeal From Order No. 90 of 2008 is on Board, but on the request of the parties, Appeal From Order No. 89 of 2008 is also called, as both matters raise same question of law and in the both the orders of remand are challenged. 3. Some of the admitted facts, which may be stated at the outset are thus:- . Appeal From Order No. 89 of 2008 is directed against the order of remand passed in Regular Civil Appeal No. 741 of 2000, decided by the Adhoc District Judge-1, Sangamner, on 28.07.2008, whereby the learned Adhoc District ( 3 ) Judge-1, Sangamner, set aside the decree of dismissal of suit bearing Regular Civil Suit No. 127 of 1992, decided by the Jt. Civil Judge, Junior Division, Sangamner, on 15.07.1998. . Appeal From Order No. 90 of 2008 is directed against the order of remand passed in Regular Civil Appeal No. 950 of 2000, decided by the Adhoc District Judge-1, Sangamner, on 28.07.2008, whereby the learned Adhoc District Judge-1, Sangamner, set aside the decree of dismissal of suit bearing Regular Civil Suit No. 126 of 1992, decided by the 2nd Jt. Civil Judge, Junior Division, Sangamner, on 16.11.1999. . It is no more disputed that the respondents/plaintiffs are owners of field Survey No.64/1, admeasuring 1 Hectare 27 R, situated at village Manglapur. The appellants/defendants in Appeal From Order No. 89 of 2008 are owners of Survey No. 64/2 and 64/3, which are on the Eastern side of the field of respondents/plaintiffs. It may be noted that the respondents/plaintiffs in both the suits are one and the same. The appellants/defendants in Appeal From Order No. 90 of 2008 are owners of Survey No. 64/2, which is on the Eastern side of the land of the plaintiffs. ( 4 ) It has now sufficiently come on record in both the suits that in between lands of plaintiffs and defendants, there exists a pakka metal road. It is case of the plaintiffs that in about December, 1989, encroachment was made by the defendants/appellants into their land Survey No.64/1 and therefore they got the land measured through Surveyor. Namdeo Bhoge, who was Surveyor working in the office of T.I.L.R. Measured the land on 28.11.1991 and found that the appellants in each of the Appeals From Order have encroached to the extent of 2 R. Thus, according to plaintiffs/respondents in all there is encroachment of 4 R. The appellants/defendants dispute this fact and say that the measurements were not correct. There was no question of encroachment by the defendants/appellants in the property of the plaintiffs/respondents in view of the road in between their lands. 4. The Trial Courts which heard the suits for possession of encroached portions, have come to the conclusion that the evidence of encroachment is not worthy of reliance and therefore dismissed the suits. The learned Adhoc District Judge-1, Sangamner, while deciding the appeals ( 5 ) came to the conclusion that since the measurements by witness Namdeo Bhoge, Cadastral Surveyor, were not not found reliable, it was necessary to appoint another Commissioner from the office of Land Records and get the lands re-measured and therefore passed order of remand of the suits. 5. The only point which arises for my consideration in these two Appeals From Order is :- Whether the orders of remand are justified in the facts and circumstances of the cases? 6. Ordinarily this Court would not interfere with the order of remand and re-measurement. It is because when adjoining land holders have dispute over the boundary and one alleges that other has encroached into one’s land, and when measurements are in doubt, it is in the interest of the parties and also in the interest of justice, that the lands be re-measured after notice to both the sides. Particularly, when discretion is used for re-measurement by the Appellate Court for good reasons, this Court would not ordinarily interfere. ( 6 ) 7. In this case, it is no more disputed that the lands between plaintiffs and defendants, there is a road. It is case of the plaintiffs in both the suits that the defendants had broken boundary bund, moved road on the side of the plaintiffs’ land and thus there was encroachment to the extent of 4 R land. The Trial Court in para 6 in Regular Civil Suit No. 127 of 1992 (against which Appeal From Order No. 89 of 2008 is filed) has observed that it was pakka road covered with metal. It has come on record that trucks, matadors and other vehicles frequently pass over the land. The adjoining land holders use the road. Under the circumstances, the question that is raised by the Civil Judge is – how is it that defendants could move such road unless they encroach upon the road. It cannot be said that they could encroach into the land of the plaintiffs directly, particularly when it is a road, which is used by the people and vehicles pass over it. So, it is not easy to divert pakka metal road. It is another thing if while people are using the road, the road got widened and there is encroachment of road into the land of the plaintiffs. So far as this aspect of the case is concerned, I am not getting ( 7 ) satisfactory explanation. The Trial Court has also considered the evidence of the plaintiffs in detail. 8. So far as evidence of Cadastral Surveyor is concerned, it has come on record that he said that he had measured the entire Survey No.64 and found one boundary mark, as mentioned in para 6 of Regular Civil Suit No.126 of 1992 by the Trial Court. We find observations in para 7 of the Trial Court judgment in Regular Civil Suit No.126 of 1992 to the effect that the document produced on record was only showing that the land Survey No.64/1 was measured and there was no evidence to show that Survey No.64 was measured as a whole. 9. It has also come on record that there was no authenticate record of the sub-divisions of Survey No.64. In judgment of Regular Civil Suit No.127 of 1992 in para 10 the Trial Court observed that sub-divisions of Survey No.64 were not demarcated by the competent authority and admission to that effect was given by P.W.1-Namdeo Bhoge in his deposition at Exh.22. Unless there is authenticate record of sub- divisions of Survey No.64 and measurements of road, no ( 8 ) purpose will be served by remanding the suits. At the cost of repetition, it may be noted that it is difficult to believe that the appellants/defendants could encroach into the land of the defendants when admittedly there is pakka road in between their lands. It is possible that since the plaintiffs and defendants became owners, there may be some differences in actual areas held by them. Apart from it, whether the road is public or not, is a matter which appears to be in dispute and I am told that another suit is pending regarding the same. In my opinion, the order of remand in the facts and circumstances of the cases, subserve cause of justice. 10. The learned advocate for the appellants had relied upon case of Ashwinkumar K. Patel V/s. Upendra J. Patel and Ors., AIR 1999 S.C. 1125, wherein the Apex Court laid down that the High Court should not remand the cases under Order 41 Rule 23 of C.P.C. to the Lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should ( 9 ) have itself decided the appeal one way or other. 11. In view of peculiar positions of the lands between the plaintiffs and defendants, in my opinion, the remands will not serve any purpose. If at all there is any encroachment into the land of the plaintiffs, it might be because of widening of the road and that aspect can not be considered in these suits even after remand. 12. In this view of the matters, Appeal From Order No. 89 of 2008 and 90 of 2008 are allowed. The orders passed by the Adhoc District Judge-1, Sangamner, are hereby hereby set aside. Both appeals R.C.A. No.741 of 2000 and R.C.A. No.950 of 2000 stand dismissed. 13. In view of disposal of these Appeals From Order, the connected Civil Applications do not survive. The Civil Applications stand disposed of. [P.R. BORKAR,J.] snk/2009/JUN09/ao89.08