HONOURABLE SRI JUSTICE C.V. RAMULU CIVIL MISCELLANEOUS APPEAL No.2931 OF 2003 JUDGMENT: This Civil Miscellaneous Appeal, under Order – XLIII Rule – (1) (u) of CPC, is directed against the judgment and decree made in Appeal No.161 of 1996 dated 19-09-2002 on the file of the learned III Additional District Judge, Visakhapatnam, whereunder the judgment and decree passed in O.S. No.451 of 1992 dated 10-04-1996 by the learned IV Additional Junior Civil Judge, Visakhapatnam, decreeing the suit, as prayed for, was set aside and the matter was remanded to the trial Court for reconsideration afresh. 2. Appellant herein is plaintiff and respondents herein are defendants. 3. For the sake of convenience, the parties are referred to as they arrayed in the suit before the trial Court. 4. Plaintiff laid the suit in O.S. No.451 of 1992 for permanent injunction for the extent of 285 square yards and for recovery of the property marked as “D M N O.” (Though the suit was filed against defendant Nos.1 and 2 for recovery of the other portion, according to the plaintiff, defendant Nos.1 and 2 have surrendered the land encroached by them, therefore to that extent there is no dispute). 5. It is the case of the plaintiff that he has purchased the site of an extent of 285 square yards with 6½ feet open space on the Southern side in Survey No.20/3 T.D. No.228, situated at Seethammapeta, Hamlet of Rasapuvanipalem, constructed four thatched houses and leased out the same to the tenants. Defendant Nos.3 to 6 are having their site on the Western side shown as “C D E F” and that taking advantage of the plaintiff’s absence from his property, defendant Nos.3 to 6 encroached his property marked as “D M N O” in the suit plan and proclaimed to encroach further into the suit schedule property by another 3 feet and did not remove their construction in spite of his request, and therefore, he was constrained to file the suit for permanent injunction and also for recovery of possession of the property marked as “D M N O” encroached by defendant Nos.3 to 6. 6. Defendant No.4 filed a written statement and the same was adopted by defendant Nos.3, 5 and 6 by filing a memo. 7. It is the case of the defendants that they are owners of the entire property marked as “C D E F” and also the property marked as “D M N O”, which are said to have been purchased by them under the registered sale deed dated 15-11-1965 and a puroni dated 19-06-1969 and that they did not encroach the suit schedule property. They are owners and possessors of their own property in their own right and that the plaintiff never questioned them about their possession and enjoyment of the extent of site said to have been occupied by them and that the suit is not maintainable, hence the suit is liable to be dismissed. 8. On the basis of the above pleadings, the following issues were framed by the trial Court for trial: 1. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? 2. Whether the plaintiff is entitled for relief of possession as prayed for ? 3. To what relief ? 9. On behalf of the plaintiff, he got examined himself as PW.1 apart from PWs.2 and 3 and also got marked Ex.A-1 registered sale deed dated 21-02-1966. On behalf of the defendants, DWs.1 and 2 were examined and Exs.B-1 to B-3 documents were marked. 10. After a detailed consideration of the entire evidence on record, the trial Court came to the conclusion and gave a finding that the admissions of defendant Nos.1 and 2 coupled with the documentary evidence proves the case of the plaintiff and accordingly decreed the suit as prayed for. Aggrieved thereby, defendant Nos.3 to 6 carried the matter in appeal in A.S. No.161 of 1996 before the learned III Additional District Judge, Visakhapatnam, who after perusal of the judgment of the trial Court as well as the other material placed before him, came to the conclusion as under; “ In a case of this nature, it is the bounden duty of the plaintiff to prove incidentally his title to the property said to have been encroached by the opposite parties. It is also for the plaintiff to prove exactly and definitely the encroachment made by the opposite parties by getting the same fixed on land within definite metes and bounds. If on measurement of the properties there is any short fall in the land purchased by the plaintiff-first respondent, then also it need not follow that the short fall must necessarily be on account of the encroachment made by the defendants 3 to 6. The short fall in the plaintiff’s property may be due to many reasons which can be easily visualized. So, it must also be established that because of the encroachment made by the defendants 3 to 6, there was a short fall in the plaintiff-first respondent’s property and not otherwise. It may also be necessary to show that the defendants are in possession of excess extent of site than the extent of site they are entitled to as per their documents and enjoyment. Whether or not there had been an encroachment by the defendants 3 to 6 (appellants) into the property of the plaintiff (first respondent) can be answered if only the above facts are established. The above facts can be established either by getting the properties measured through a private surveyor and by examining him or by taking an Advocate- Commissioner and getting the properties measured through a Surveyor in his presence. The plaintiff-first respondent in this case did not take either of the two steps to prove that there is an encroachment as contended by him. Unless the properties are measured and the definite extent of property said to have been encroached by the defendants 3 to 6 is fixed on land by fixing the boundaries and the measurements on four sides it is not possible and practicable to arrive at a just conclusion about the exact extent of encroachment, if any, made by the defendants 3 to 6 (appellants herein). Having adverted to the oral and documentary evidence on record, the plaint plan and the admissions said to have been made by the defendants 3 and 4 in their evidence as D.Ws.1 and 2 and also having adverted to the legal position supra, I am inclined to hold that the evidence on record is not sufficient to answer Point No.1 in favour of the first respondent-plaintiff. Hence, I answer this point accordingly.” Thus, allowed the appeal and remanded the matter for reconsideration afresh. Aggrieved thereby, the present appeal is filed. 11. Learned counsel for the plaintiff (appellant) strenuously contended that in the teeth of evidence available on record, firstly the trial Court has not committed any error in coming to the conclusion that the plaintiff is entitled to the decree, as prayed for, and secondly with regard to the findings recorded by the lower appellate Court that there is some ambiguity as to the measurements and actual portion of occupation (encroachment) by defendant Nos.3 to 6 and therefore the matter needs to be remanded for reconsideration, he contended that in fact there is no such necessity of remanding the matter for reconsideration, as, even if, such a finding is not recorded by the trial Court, in view of the abundant evidence available on record, the lower appellate Court itself would have considered the aspect of encroachment, if any, made into the suit schedule property by defendant Nos.3 to 6 and could have passed appropriate orders and disposed of the appeal, but instead of doing that, it has remanded the matter without properly appreciating the evidence available on record. 12. Per contra, learned counsel for the defendants (respondents herein) stated that the trial Court has not given any finding as to the exact portion of the land being encroached by defendant Nos.3 to 6 and unless and until such a finding is recorded and decision is made, the question of granting any injunction against defendant Nos.3 to 6 does not arise. 13. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order made available on record. 14. In the teeth of the findings recorded by the appellate Court, as noticed above, and a perusal of the judgment of the trial Court would indicate that absolutely there is no categorical finding as to what exactly the extent of land encroached, if any, by defendant Nos.3 to 6 for which a decree of injunction needs to be passed by the trial Court. Unless and until, a surveyor is appointed and the lands are measured as per Exs.A-1 and B-3, the exact encroachment cannot be decided. Therefore, it is easy to make out the exact encroachment, if any, made by defendant Nos.3 to 6, only after a survey is conducted in this regard by appointing an Advocate – Commissioner etc. 15. Therefore, I am of the opinion that the lower appellate Court has not committed any error in giving a finding that there is some ambiguity as to the exact area of encroachment, if any, made by defendant Nos.3 to 6, and therefore, the matter requires remand and reconsideration afresh for ascertaining the exact area of encroachment. In the circumstances, I am of the opinion that the lower appellate Court has not committed any error calling for interference of this Court. The appeal is devoid of merits and is liable to be dismissed. 16. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. 17. However, the trial Court is directed to dispose of the suit as early as possible within a period of six (6) months from the date of receipt of a copy of this order. _____________________ C.V. RAMULU, J July 29, 2010. NOTE: The office is directed to dispatch the records to the trial Court along with the judgment itself. (B/O) PV