1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.48 OF 2010 Geetabai Vitthalrao Jawale and others APPELLANTS VERSUS Mumtazunnisa Begum w/o.Mohd, Hameedullah Farooqui, RESPONDENT Mr.N.T.Bhagat, learned counsel for appellants. (CORAM : A.V.POTDAR, J.) DATE : 06/04/2010 PER COURT : 1. Heard learned counsel for appellants. 2. This AO arises out of the judgment and order/decree passed by the 3rd Additional Sessions Judge, Aurangabad in Reg.Civil Appeal No.291/2005, by which the 3rd Additional Sessions Judge, Aurangabad has remanded the matter RCS No.1168/2000 to the file of 4th Jt.C.J.J.D. under order 41 rule 23A of The C.P.C. 3. After hearing the counsel for appellants, perused the papers annexed with the AO. It appears that the respondent in the AO had filed RCS No.1168/2000, before C.J.J.D. Aurangabad for possession, after removal of the encroachment at the hands of appellants herein, who were arrayed as defendants in the said suit. On service of suit 2 summons, the appellants who were defendants before the First Court, have appeared in the suit and filed their written statement. On the basis of pleadings of the parties, issues were framed at Exh. 15, relating to the ownership of the property in question as well as whether appellants have encroached on the property which was of respondent plaintiff. It is to be noted that the Trial Court has answered the finding of issue of ownership in affirmative, while the issue of encroachment in the negative. But surprisingly, recorded the finding on the issue of defendant’s possession over the property by adverse possession in the affirmative, at the same time, the issue of limitation in the negative. It appears from the finding recorded on issue no.2,3 and 4 that they are contradictory to each other. Being aggrieved by the judgment and decree passed by the Trial Court on 20/02/2005, the respondent preferred first appeal no.291/2005. The said appeal came to be decided vide judgment and decree dated 19/09/2009, and while allowing the said appeal, the learned First Appellate Court has remanded the matter back to the trial court under order 41 rule 23A of CPC. It is specifically observed in para no.14 and 15 that when the finding was recoded on issue no.2 in the negative, but the finding recorded on issue no.3 was in the affirmative, which is inconsistent with each other. In para no.15, the First Appellate Court has discussed about the evidence in respect of the alleged encroachment at the hands of present appellants, who are respondents in the first appeal. It is specifically observed in para no. 15 that when the plaintiff has established the title over CTS No. 308/2001, on which the finding was recorded in the affirmative, but 3 while recording the finding on issue no.2 in negative, reliance is placed by the respondent to this appeal at Exh.57, which was prepared by the City Survey Officer, but without notice to the present appellants, who are respondents before the First Appellate Court. It is further observed in para no.15 of the appellate order that as this measurement was carried out without due notice to the appellants herein, who are respondents in the first appeal, caused prejudice to the appellants herein. In the premise, directions were given to the Trial Court while remanding the suit back to appoint the City Survey Officer as the Commissioner in the suit to measure the disputed property after due notice to the parties to the appeal and the adjacent owners, and on receipt of the report, decide the suit afresh in accordance with law. 4. Rule 23A of Order 41 of CPC speaks for the instances when the matter to be remanded to hear afresh and for which discussion is find in para no.16 of the judgment of the First Appellate Court, which can not be termed as a perverse observations. Considering these facts, which are find place in the discussion in para no.15 and 16 of the judgment of the First Appellate Court, this Court do not feel it necessary even to issue notice before admission to the respondent. In the premise, the AO sans any merit, hence stands rejected. (A.V.POTDAR, J.) khs/APRIL 2010/ao48-10