1 sa 141.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 141 OF 2009 Bakhtiyarkhan Jabbarkhan Pathan, Age : 55 Years, Occu. : Business, R/o Pathan Mohalla, Taluka Jintur, Dist. Parbhani. .. Appellant Versus 1. Sattarkhan S/o Kalandarkhan Attar, Age : 35 Years, Occu. : Business, R/o Pathan Mohalla, Taluka Jintur, Dist. Parbhani. 2. Sk. Rahim Sk. Ismail, Age : 30 Years, Occu. : Business, R/o As above. 3. Syed Khalil Syed Ismail, Age : 32 Years, Occu. : Business, R/o As above. 4. The Chief Officer, Municipal Council, Jintur, Taluka Jintur, Dist. Parbhani. .. Respondents Shri S. V. Chandole, Advocate h/f Shri V. G. Sakolkar, Advocate for the Appellant. Shri A. S. Deshmukh, Advocate for the Respondent No. 1. Shri S. J. Salunke, Advocate for the Respondent No. 4. The Respondent Nos. 2 and 3 are served. 2 sa 141.09 CORAM : S. V. GANGAPURWALA, J. DATE : 13TH APRIL, 2011. ORAL JUDGMENT : . This is an appeal by the original defendant No. 1. The plaintiffs had filed a suit claiming mandatory injunction against the defendant No. 1 for removal of encroachment committed by the defendant No. 1 on the road. The Trial Court dismissed the suit holding that the plaintiffs could not prove the exact encroachment committed by the defendant No. 1. Even the evidence of D.W. 5 and 6 who were the officers of the Municipal Council could not show the exact extent of encroachment. The plaintiffs preferred an appeal. The Appellate Court allowed the appeal. Aggrieved thereby the defendant No. 1 has filed the present second appeal. 2. Shri Chandole, the learned counsel holding for Shri V. G. Sakolkar, the learned counsel for the appellant submits that there is absolutely no evidence on record to show the exact extent of encroachment allegedly committed by the defendant No. 1. The plaintiffs were also not in a position to show the same, nor the Municipal Council could prove the exact area of encroachment. The Trial Court after discussing the said evidence had rightly dismissed the suit. No measurement map is 3 sa 141.09 there on record to prove the encroachment. The fact that the defendant No. 1 is owner of the house is proved. But the width of the road and the alleged extent of encroachment is not on record. 3. Shri A. S. Deshmukh, the learned counsel for the respondent No. 1/original plaintiff submits that even the Municipal Council had issued a notice to the defendant No. 1 to remove the encroachment for which they had filed a suit. The suit is dismissed for non prosecution. According to the learned counsel the plaintiffs have categorically shown the area of encroachment committed by the defendant No. 1 and the lower Appellate Court has rightly decreed the suit. According to the learned counsel, even contempt petition was filed against the defendant No. 1, wherein he admitted the said encroachment and had said that he would remove the tin shed. He has only removed the tin shed, but rest of the encroachment is not removed. This fact itself shows that the defendant No. 1 had committed an encroachment. In the light of above, the following substantial question of law arise. i) Whether merely on assumption without measurement the exact extent of encroachment committed by the defendant No. 1 could be ascertained ? 4 sa 141.09 Admit. 4. The learned counsel for the respective parties states that the matter be decided finally at the stage of admission. The matter is taken up for final hearing with the consent of parties. 5. With the assistance of learned counsel, I have gone through the impugned judgment and record and proceedings. No doubt, the Trial Court after discussing the evidence of the witnesses and Municipal Council has categorically come to the conclusion that the extent of encroachment said to have been committed by the defendant No. 1 could not be proved. The D.W. 6 Ramrao Pawar who is engineer of the Municipal Council, could only state that on measurement he found 4.95 meter encroachment having width. But the length of encroachment has not been stated. More over, it is nowhere on record that the said measurement was done in presence of the defendant No. 1. So also the said witness could not state the total portion said to be encroached by the defendant No. 1. In absence of any measurement being done, it would be improper to arrive at the conclusion of the extent of said encroachment alleged to have been committed by the defendant No. 1. It is only by a measurement, the exact area of encroachment could be arrived at. 5 sa 141.09 6. In that light of the matter, I feel it appropriate to relegate the parties to the Trial Court with directions to appoint the City Survey Officer as a Commissioner to carry out the measurement of the house of the defendant No. 1 and to show the exact extent of encroachment if any. 7. In the result the second appeal is partly allowed. The impugned judgments are quashed and set aside. 8. The parties are relegated to the Trial Court. The Trial Court shall appoint the City Survey Officer as a Commissioner to measure the width of the road and the house of the defendant No. 1 and to show the area of encroachment if any. The parties are at liberty to adduce the evidence if they so desire. The parties shall appear before the Trial Court on 30th April, 2011. The second appeal is disposed of with aforesaid observations, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11