1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 179 OF 2008 Nanasaheb Deoram Shelke ) Age 62 years, Occu: Agriculture ) residig at Kalkhode, Taluka Chandwad, ) District Nashik. ).. Appellant (Org.deft.No.1 in RCS No.24/97) Versus 1. Shri Dagu Sriram Shelke ) age 48 years occ: agriculture ) 2. Shri Trimbak Deoram Shelke ) age 47 years, occ: agriculture ) both residing at Kalkhode, ) Taluka Chandwad, District Nashik. )..Respondents Mr. G.S.Godbole, Advocate, for the appellant. Mr. Rameshwar N.Gite, Advocate, for the respondent No.1. CORAM: J.H.BHATIA,J. DATE : 10th August, 2009. JUDGMENT 1. Heard the learned Counsel. Perused the Judgments of the Courts below. 2. The Appeal is admitted on the following grounds :- “1. Whether the Courts below failed to note that when there was no 2 notice served on the Appellant before measurement of the land and as the Surveyor has not produced any documentary evidence showing the proof of service of notice, the findings of the Court below regarding the alleged service of notice for measurement is perverse. 2. Whether, the Courts below were justified in accepting the evidence of the Surveyor and were justified in holding that the Appellant had committed alleged encroachment particularly when the Surveyor had clearly admitted that he had not fixed the points for measurement, adjacent lands were not measured and whether the entire report of the Survey was therefore liable to be discarded.” 3. The respondents filed Regular Civil Suit No.24 of 1997 contending that he is the owner of the land Gat No.350 situated at village Wahegaon Tal. Chandwad, Dist. Nashik. The land admeasures 2 hectares 77 Ares. To the south of Gat No. 350 is the land Gat no.352 belonging to the defendants/present appellants. According to the plaintiff, he got the land measured and it was found that the defendants have encroached upon 46 Ares. The boundaries were fixed on 15.10.1996. By filing the suit, he sought decree for removal of encroachment and for possession. The defendants denied the allegation of encroachment. The 3 suit was decreed. Regular Civil Appeal no.52 of 2005 filed by the original defendants came to be dismissed. Hence, the Second Appeal. 4. The learned Counsel for the defendants/appellants points out that according to the Surveyor, the land was measured on 29.6.1996, but the boundaries were not fixed on that day. The boundaries were fixed on 15.10.1996. He also points out from the evidence of the concerned Surveyor that he had no record to show that notice of the survey of 29.6.96 was in fact served on the defendants. The learned Courts below came to conclusion that the defendants were served, but the learned Counsel points out that the said finding is contrary to the admission given by the surveyor in the cross-examination. The learned Counsel also pointed out that only land Gat No.350 was measured and the land Gat No.352 of the defendants was not measured. According to him, measurement of both the lands was necessary to find out whether there was any encroachment and if yes to what extent. The learned Counsel for the plaintiff/respondent could not point out anything from the record to contradict the contentions made by the learned Counsel for the defendants/appellants. 5. Taking into consideration the circumstances and the facts noted above, the following directions will meet the ends of justice :- 4 (1) The Appeal is allowed. The judgment and decree passed by both the Courts below are hereby set aside. Regular Civil Suit No.24 of 1997 is remanded back to the trial Court with a direction that the District Inspector of Land Records shall be appointed as Court Commissioner for measurement of Gat No.350 of the plaintiff as well the Gat No.352 of the defendants. The DILR or any other Cadestral Surveyor nominated by him in this respect shall carry out measurements after giving notice to both the parties and shall also fix the boundaries of the land Gat No.350 at the time of measurement. The DILR shall submit his report to the trial Court within four months from the receipt of the order of appointment. The plaintiffs and the defendants shall initially pay costs of measurement in the ratio of 50% each. The costs shall be eventually treated as costs in the suit. (2) The trial Court shall expedite the hearing and dispose of the suit within one year from the date on which the parties shall appear before the trial court. (3) The parties shall appear before the trial Court with copy of this order on 10th September, 2009. 5 6. As the Appeal itself is disposed of, C.A.No.482 of 2008 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)