IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 64 OF 2007 SHRI. ENU LADU NAVELKAR ... Appellant Versus SHRI. MONO KHEJNU PILYEKAR AND ANR., ... Respondents Mr. Mahesh Amonkar, Advocate for the Appellant. Mr. R. G. Ramani, Advocate for the Respondents. Coram:- N. A. BRITTO, J. Date:- 12th June, 2008 P.C.:- Heard learned Counsel on behalf of both parties. There is no dispute that the Appellant-Plaintiff is the owner of the paddy field surveyed under No.14/1 while the Respondents-Defendants are the owners of the paddy field surveyed under No. 13/1. The Plaintiff had filed the suit initially stating that the Defendants were trying to encroach into their paddy field and subsequently after the wall was constructed by the Defendants, the Plaintiff had amended the plaint and sought for demolition of the wall constructed by the Defendants. The Plaintiff had filed an application for the appointment of a Commissioner in terms of Order 26, Rule 9, C.P.C. which application came to be rejected by the learned trial Court. The Plaintiff had examined one surveyor as an expert. The Plaintiff's suit came to be decreed by the learned trial Court by Judgment/Decree dated 16-8-2004. The appeal having been filed against the same, however, the said Judgment/Decree came to be set aside by Judgment/Decree dated 22-12-2006. It is true that the Plaintiff did not pursue the matter of the appointment of a Commissioner before the first appellate Court. The learned first appellate Court did not consider that the surveyor was an expert as he was not qualified. Learned Counsel on behalf of the Plaintiff relying on two Judgments of this Court in Omprakash Gulabchand Bajoria v. Ramesh Ramnivas Soni and others(2003(Supp.2) Bom.C.R. 294) and Prakash Harising Bhadoriya and another v. Dada Jago Chahande(2005(1) Bom.C.R. 494) contends that it is open for this Court even at this stage in Second Appeal to appoint a Commissioner so that the dispute between the parties is put to an end. Learned Counsel on behalf of the Defendants submits that the appointment of a Commissioner was considered by this Court in the said two decisions only after substantial question of law was framed. It may be so. That cannot come in the way of remand. Cases such as this can more conveniently be decided by appointing Commissioner. That will also save time, money and energy of the parties. This Court in the case of Omprakash Gulabchand Bajoria v. Ramesh Ramnivas Soni and others(supra) observed thus: "The trial Court on appreciation of evidence granted decree in favour of the plaintiff and recorded findings that the plaintiff has proved that both the defendants had made encroachment upon his land and negatived the contention of the defendants that Pandurang Devghare is a statutory tenant on the disputed site and that defendants No.1 and 2 are the licensees of the said Pandurang Devghare. The Appellate Court on reappreciation of the material brought on record was of the view that whatever measurements were carried out by the Nazul Surveyor cannot be said to be accurate in any manner and it would be futile to examine the Commissioner, if appointed under Order 26, Rule 9 of the Code of Civil Procedure. The Appellate Court recorded a finding that the plaintiff has failed to establish that the defendants have made encroachment on the later's land much less to the extent of 10 x 7 feet on the north-east portion. Consistent with these findings, the Appellate Court set aside the Judgment and Decree passed by the trial Court. The defendant No.2 died during the pendency of this appeal and his legal representatives are brought on record". Considering the facts of the case, it would be in the interest of justice that the dispute between both the parties is put to an end and that can be done only by appointment of a Commissioner to find out whether there was any encroachment into the paddy field of the Plaintiff surveyed under No.14/1 of Village Vagurem. In the circumstances, both the Judgments of the Courts below are hereby set aside and the learned trial Court is hereby directed to appoint a qualified surveyor either as agreed by the parties or by directing the Director of Land Survey Department to depute one, on their behalf. The surveyor so appointed shall survey both the sub-divisions and indicate if there is any encroachment as alleged by the Plaintiff, or otherwise after notice to both parties. The suit shall thereafter be decided, after hearing the parties, and after taking into consideration the report submitted by the surveyor so appointed. Costs of the Commissioner to be paid by the Plaintiff. N. A. BRITTO, J. RD.