HiGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Dilio Raosaheb Deshmukh, J. Appellants Defendants Respondentf Plaintiff M.A. No.27/2008 1. Bhagbali Ram Machle, aged about 35 years, S/o Sukalu Ram Machle, R/o Village Tulsipur, District Rajnandgaon 2. Smt. Kamla Bai, aged about 30 years, W/o Bhagbali Ram Machle, R/o Vitlage Tulsipur, District Rajnandgaon ?C.G.) versys Smt. Nandani Chewankar, W/o Mahesh Chewankar, Aged about 35 years, R/o Viltage Tulsipur, Distrtct Rajnandgaon (C.G.) Miscellaneous Apoeal under Order 43 Rule 1 (u) of Code of Civit Procedure. 1908. Present:- Shri Parag Kotecha with Shri Anand Shukla, counsel for the appeltante. ORAL ORDER (Passed on this 2 day of April, 2008) Heard on admission. (2) The _appeltants/defendants are aggrieved by the judgment and —'"••^ decree dated 24-01-2008 passed by the District Judge, Rajnandgaon in Civil Appeal No.13-A/2004 whereby due to the divergent demarcation reports Ex.P-1, P-3 and Ex.D-1, white setting aside the judgment and decree dated 06-05-2004 passed by the 1st Civil Judge Class I, Rajnandgaon in Civil Suit No.23-A/2001, the matter was remanded to the triat Court with a direction to appoint Commissioner for spot inspection and demarcation of the suit land, and thereafter to decide the suit afresh. (3) Shri Parag Kotecha, learned counsel for the appellante submitted that the order passed by the trial Court amounts to giving an opportunity to Utjhftuuftiff^rirt^" -2-- ^? the respondent/piaintiff to fill-up the lacuna. t do not agree with the submission. (4) The triat Court has dismissed the suit white recordlng a finding that the appellanVplaintiff had failed to prove any encroachment over his land by the respondenVdefendant. After closure of the evidence of the appeliant/plaintiff, the demarcation report Ex.D-1 fited by the respondents/defendants was taken on record. An application under Order 26 Rule 9 read with Section 151 C.P.C. was filed by the appellanVplaintiff before the lower appellate Court for appointment of an independent Commissioner for spot inspection and demareation. The lower appeltate Court has, considering divergent and contradictory demarcation reports Ex.P-1, P-3 and Ex.D-1, remitted the matter to the trial Court with a direction to obtain report of spot inspection after appointment of Commissioner and thereafter to deckle the suit afresh. The lower appellate Court has jurisdiction to do so in order to do complete justice between the parties. (5) tn the resuit, there is no merit in thjs appeal which is accordingl^ dismissed at the stage of admission. -;-'" •~^-; Sd/- Dilip Raosaiieb Deshmukh Judge Tumans