VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 579 OF 2008 Ms. Sarojini Annaso Nawale Appellant Vs. Dinkar Rajaram More & Anr. Respondents Mr. N. J. Patil, for the Appellant. CORAM : A. A. KUMBHAKONI, J. DATE : SEPTEMBER 5, 2008. PC :- 1. Present Appeal From Order is filed by the original defendant, impugning the judgment and order passed by the lower appellate Court, dated 29th February, 2008 in Regular Civil Appeal No. 47 of 2007 whereby the appeal of the respondent is partly allowed and by setting aside the judgment and decree of the trial Court, the suit is remanded to the trial Court with certain directions. 2. Admittedly, the appellant herein was the original owner of large truck of agricultural land, part of which was sold by the appellant to the third party, from whom the plaintiffs/ respondents herein have purchased that part of the property. Resultantly, the appellant and the respondents are - 2 - neighbours. 3. The respondent herein filed Regular Civil Suit No. 48 of 1997 in the Court of Civil Judge, J.D. Ichalkaranji on 5th February 1997, seeking injunction simplicitor, restraining the defendants from obstructing the alleged possession of the plaintiff over the suit property i.e. portion that was purchased by the plaintiff. 4. The suit was contested by the present appellant. The learned trial Court was pleased to appoint an advocate as a Court Commissioner, who after carrying out commission work submitted report, at Exh. 100 along with map, prepared by him which is at Exh. 101. The learned trial Court relied on the report of the Court Commissioner and decided the correctness of the case, tried to be made out by the plaintiff/ respondent herein. The trial Court relied on the Court Commissioner report, and disbelieved the case of the plaintiff. Thus, the suit was dismissed by the judgment and order dated 24th March, 2006. 5. The plaintiff being aggrieved and dissatisfied with dismissal of his suit, preferred Regular Civil Appeal No. 47 of 2007 with the District Court. The - 3 - appellate Court has observed in the impugned judgment that since it is a boundary dispute between the two contesting neighbouring agricultural land holders, it is not possible for the Civil Court to finally determine the dispute without there being authenticated measurement of both the lands and a map drawn on that basis. The learned lower appellate Court therefore, was pleased to set aside the judgment and decree of the trial Court and was pleased to remand the matter to the trial Court with a direction that the trial Court should appoint Taluka Inspector of Land Records, Hatkanangale as a Court Commissioner to mark the boundaries of the lands, belonging to the plaintiff and defendants, on the basis of documents at Exhs. 107 and 149, which are documents of title. The lower appellate Court by the impugned order has directed the trial Court to permit both the sides to lead their evidence after the receipt of report of TILR as a Court Commissioner. This Appeal From Order impugns such an order of remand. 4. The learned counsel appearing on behalf of the appellant took exception to the judgment and decree of the trial Court on the ground that it was open for the appellate Court itself to appoint cadestral surveyor as Court Commissioner and upon receipt of report of - 4 - Court Commissioner, the appellate Court itself should have decided the dispute. He placed the reliance on the decision of the Supreme Court in the case of Suryanarayana Suryanarayana Suryanarayana Reddi & Ors. Vs. Nawab Md. Kabiruddin Reddi & Ors. Vs. Nawab Md. Kabiruddin Reddi & Ors. Vs. Nawab Md. Kabiruddin Khan, Khan, Khan, reported in (2004) 13 Supreme Court Cases 703 (2004) 13 Supreme Court Cases 703 (2004) 13 Supreme Court Cases 703 and also placed reliance on Order 26, Rule 9 of the Civil Procedure Code. 5. I do not find substance in this contention of the learned counsel basically because even after receipt of the report of the Court Commissioner, both the parties were entitled to either object or support the same and also lead their evidence to prove their own case, in the context of the report of the expert Court Commissioner. Thus, case could not have been decided, in view of the facts and controversy involved in the matter, only upon the report of the Court Commissioner. Both the parties were required to be given opportunity to lead their evidence in that regard. Therefore, I find that the lower appellate Court was justified in remanding the matter to the trial Court, with the aforesaid directions, whereby not only it was directed that TILR be appointed as Court Commissioner being expert in agricultural land measurements but also that both the parties should be given opportunity to lead their evidence in regard to - 5 - the report of the TILR. 6. It is true that as submitted by the learned counsel appearing on behalf of the appellant that it was open for the lower Court itself to apoint Court Commissioner, and obtain the report of the Court Commissioner on record and even permit both the parties to lead their respective evidence in that regard. However, only because the lower appellate Court has not adopted such course of action and instead of that, has preferred to remand the matter back to the trial Court to do that job, this Court will not be justified in interfering with such an approach of lower appellate Court. The course adopted by the lower appellate Court cannot be said to be either illegal or unsustainable in law and in view of the facts of the case. It is well settled position of law that only because another view of the matter is possible, the appellate Court cannot interfere with the judgment and order of the lower Court. If two views are possible in a given set of circumstances and if the lower Court prefers one view over the other, it does not give any cause for the appellate Court to interfere with such an approach of the lower Court. . The learned counsel appearing on behalf of the - 6 - appellant placed reliance on the judgment of the Supreme Court in the case of Suryanarayan Reddi Suryanarayan Reddi Suryanarayan Reddi (supra). (supra). (supra). All that what this order of the Supreme Court says is that an appellate Court also has power to appoint the Court Commissioner under Order 26, Rule 9 of the Code of Civil Procedure. In fact in the present case appellate Court has exercised such a power, though partly, in as much as it has issued directions to the trial Court to appoint TILR as the Court Commissioner to carry out the aforesaid measurement. Consequently, it cannot be said that the appellate Court has passed an order which runs counter to what has been laid by the Supreme Court by its aforesaid judgment. 7. The learned counsel appearing on behalf of the appellant tried to demonstrate to this Court on the basis of the hand made sketch, submitted by the plaintiff and the hand-made map prepared by the Court Commissioner that a case of the plaintiff was absolutely not correct and contrary to the facts and circumstances that prevailed at the grassroot level. I am unable to appreciate these contentions, as in my view, the sketch of the plaintiff as also that of the Court Commissioner (being an advocate), are hand made sketches, neither drawn on scale nor prepared on the - 7 - basis of any accurate measurement carried out scintifically. The nature of dispute involved between the parties requires a skillful job of an expert, i.e. measurement of agricultural land and fixing of their boundaries. Therefore, it is not possible to rely upon the hand-sketch of the Court Commissioner, as well as of plaintiff to finally determine the dispute between the parties. 8. Moreover, as set out hereinabovle, the trial Court has taken care to permit not only the respondents herein but also the appellant herein to lead his evidence in support of his case after the receipt of report of TILR. In my view therefore, no prejudice would be caused to the appellant by remand order passed by the lower appellate Court. 9. In view of these facts and circumstances of this case, and the nature of the dispute, I do not find any reason to interfere with the judgment, order and decree of the lower appellate Court. Hence, the appeal is dismissed. [ A. A. KUMBHAKONI, J.]