1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 111 OF 2009 (Saifuddin Ismailbhai Topiwal vs. Smt. Sunderbai wd/o laxmanrao Kailabag) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 20, 2009. Heard Shri Shams for the appellant - defendant and Shri Patrikar with Shri Mahajan, learned counsel for the respondent – plaintiff. Shri Shams, learned counsel has pointed out that the trial Court dismissed the suit of the respondent – plaintiff for removal of encroachment and lower appellate Court has decreed that suit after appointing Commissioner and by relying upon his report. He contends that there was no plaint map and also there is no clear pleading about the extent of encroachment. According to him, the report of Commissioner, therefore, was of no use particularly when the Commissioner did not measure the entire lay out to find out the exact placement of plot No. 42 of the respondent and plot No. 43 of present appellant. According to him, therefore, the contention that plot No. 43 of the appellant is wiped 2 out in road widening is misconceived and has not been proved. Shri Patrikar, learned counsel on the other hand has contended that the respondent – plaintiff is not in possession of anything and his plot No. 42 has been completely encroached by the appellant. He states that plot Nos. 41 and 43 belong to the appellant and in between these two plots, plot No. 42 belonging to the present respondent is located and taking advantage of absence of the respondent – plaintiff, a wall has been put on plot No. 42 and entire plot No. 42 is taken in possession by the appellant. Shri Shams has pointed out that this was not the case pleaded before the trial Court and he has further stated that it has not been brought on record that plot No. 41 belongs to present respondent. Shri Patrikar, learned counsel states that because of this position, another suit was filed by the plaintiff against the Planning authority i.e. Nagpur Improvement Trust. After hearing both sides, I find that the allotment of Plot No. 42 in favour of the respondent is not in dispute. It is obvious that plot No. 42 has to exist somewhere. In these circumstances, non 3 application of mind by both the Courts to the issue is apparent and the non application appears to be due to the fact that the clear factual position was not placed on record. The fact that the plots of appellants - defendants were on either side of plots of the respondent - plaintiff is not pleaded and therefore not considered by any of the Courts below. In view of this, both the learned counsel state that in stead of this Court recording finding at this stage, the matter should be remanded to the trial Court so as to enable the parties to amend their pleadings and lead additional evidence. Shri Shams, learned counsel states that the question whether plot No. 41 belongs to the appellant should also be kept open. In view of the joint request made by the parties, I find that it is not necessary for this Court to delve more into the controversy. The matter is remanded to the trial Court in view of the consent given, so as to enable the parties to amend their pleadings and lead evidence in accordance with law. Accordingly, the judgment dated 10.12.2008 delivered by the District Judge – 10 in Regular Civil Appeal No. 562 of 2008 and the judgment dated 22.8.2008 in Regular Civil Suit No. 1458 of 2002 are hereby quashed and set aside. The proceedings in 4 Regular Civil Suit No. 1458 of 2002 are restored back to file of 8th Joint Civil Judge, Junior Division, Nagpur. The parties are at liberty to amend their pleadings. After the pleadings are amended accordingly, the said Court to proceed further with the trial of the suit afresh uninfluenced by the orders passed by the lower appellate Court and any observations made by this Court. As the suit is of the year 2002, the said Court should attempt to decide the same as early as possible and in any case by 30th April 2010. Rule accordingly. However, in the circumstances of the case, there shall be no order as to costs. JUDGE *GS.