1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 191 OF 2010 1] Jagannath S/o Manik Patil, (Deceased through his heirs Legal representative) .. APPELLANTS (Ori. Defendants) VERSUS Bhimraj S/o Ananda Patil & others .. RESPONDENTS (Ori. Palintiffs) ... Shri L.V. Sangit, Advocate for appellants Shri V.B. Patil Advocate for respondent Nos. 1 to 3. CORAM : S.V. GANGAPURWALA, J. DATE : 15h SEPTEMBER, 2010. PER COURT : Rule, Rule returnable forthwith with the consent of parties. 2. The present appellants are the original defendants. The present respondents had filed suit for removal of encroachment. According to the plaintiffs, the defendant had encroached on their land to the extent of 2 Hector and 46 Aar. They claimed the said encroachment on the basis of measurement carried out by the Cadastral Surveyor on dated 26th September, 2000. After 2 recording the evidence, the Trial Court decreed the suit. The Appellate Court confirmed the finding of the Trial Court. The defendants have assailed the said Judgment in present appeal. 3. Shri Sangit, learned Counsel for the appellant submitted that the measurement and the map, have not been proved as is required under the provisions of Section 83 of the Indian Evidence Act, read with Order 26 Rule 10 (2) of Civil Procedure Code, inasmuch as the person who had measured the said land was not examined. He submitted that apart from the measurement, there was no other evidence to prove the alleged encroachment. The learned Counsel relied on the Judgment, in a case of “ Kashinath Chinduji Shastri V/s. Haribhau Nathuji Bawanthade, reported in 2006(Supp.) Bom.C.R. 1018” 4. Shri Patil, learned Counsel for the respondent contended that Shri Kumawat was appointed as a Surveyor and he had carried out the measurement. One Shri Bhavsar was also present during the measurement and he has been 3 examined to prove the measurement. According to him, evidence of Bhavsar is sufficient to prove the measurement and the map. According to Shri Patil there are concurrent findings of facts. In the light of above following substantial question of law arises : “ Whether the measurement map is proved, as required under the provision of Evidence Act and Code of Civil Procedure?” 5. The factum of encroachment can be proved by measurement. In such circumstances, it was necessary that the person who measured the land is examined. The plaintiffs instead of that have examined Shri Bhavsar, who is also Surveyor according to the plaintiffs. The record does not show that he had carried out the measurement. Even in his examination in chief he has stated that Shri Kumawat carried out the measurement. Even the Court had issued witness summons to Shri Kumawat, but instead of him Shri Bhavsar was examined. In such circumstances, it cannot be 4 said that the compliance of Section 83 of the Evidence Act read with Order 26 Rule 10(2) of Civil Procedure Code has been made. 6. Interest of justice could sub-serve, if the matter is remanded back and opportunity is given to examine Shri Kumawat who would be in a position to prove the measurement and map, and if Shri Kumawat is not available or in case the Court on evidence of Shri Kumawat, is not satisfied with the said measurement, then in such circumstances, the Trial Court may order issuance of Commission to the Taluka Inspector of Land Record for the measurement of the properties of the plaintiff and defendant. 7. With the above observations, I relegate the parties to the Trial Court for decision of the said suit. However, as the parties have already led their evidence the matter is being remanded only for the purpose of taking the witness of Shri Kumawat, the Surveyor and in case the Court is not satisfied with the measurement carried out in that case for issuance of fresh 5 Commission to the concerned Taluka Inspector of land Record to measure the properties of the plaintiff and the defendants. In case, the Trial Court comes to the conclusion to issue fresh Commission for measurement in that case both the parties shall equally bear the cost of Commission. 8. In the result, the Second Appeal is partly allowed. The impugned Judgments are quashed and set aside. The parties shall appear before the Trial Court on 4th October, 2010 and the Trial Court shall decide the suit within a period of six months thereafter. Rule made absolute in above terms. However, there shall be no order as to costs. 9. In view of the disposal of the Second Appeal, Civil Application No. 3130 of 2010 does not survive, and same is disposed of accordingly. [S.V. GANGAPURWALA,J] SDM*191.10SA