1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.399 OF 2009. Anant S/o Namdeo Palmate ... Appellant. Versus Sopan S/o Mahadu Palmate and others ... Respondents. ... Mr.S.V.Warad, advocate for the appellant. Mr.V.D.Gunale, advocate for the Respondent Nos. 1,2A to 2G and 3. ... CORAM : V.R.KINGAONKAR,J. Date : 19.11.2009. PER COURT 1. This Second Appeal arises out of concurrent findings of the trial Court and the first appellate Court in suit (RCS No.286/1981) and in appeal (RCA No.49/2004). It is not necessary to elaborately set out the rival pleadings. Admittedly, the appellant (plaintiff) 2 owns agricultural land bearing S.No.25/4 admeasuring 2 hectares 22 Ares,whereas the defendants are owners of adjoining lands bearing S.No.25/6 and S.No.25/7. According to the plaintiff, the defendants encroached over his land to the extent of southern 56 Ares area. The encroachment was revealed when his land was measured on 14.12.1980. He sought possession of the encroached portion. The defendant denied truth into the material averments made by the plaintiff. They denied to have encroached upon the strip of 56 Ares situated on southern side of the plaintiff's land. Initially the encroachment was not held as proved due to certain defects in the measurement. The first appellate Court remanded the matter to the trial Court and again TILR was appointed as Commissioner to carry out the measurement work. Considering the evidence of the parties, the trial Court dismissed the suit. The first appellate Court confirmed the dismissal decree. 2. Heard learned counsel. 3 3. The only substantial question of law involved in this Second Appeal is : "(i) Whether in the facts and circumstances of the present case, the measurement carried out by the TILR was proper and whether the Courts below committed patent error while discarding the measurement report and that it would be appropriate to appoint DILR in order to carry out composite measurement of the lands of the parties so as to locate whether or not there is encroachment over the plaintiff's land.?" 4. It is explicit that while remanding the matter vide judgment dated 10.6.1992, the learned 4th Additional District Judge, Latur, gave direction that DILR shall carry out afresh measurement of S.No.25 Pothissa No.4. Unfortunately, there was no direction to carry out composite measurement of the three lands i.e. S.No.25/4, S.No.25/6 and S.No.25/7. The trial 4 Court noticed that a part of S.No.25/4 is encroached by occupant of S.No.25/6 and 26 Ares land is encroached upon by occupant of S.No.25/7. The trial Court noticed that 18 Ares out of Hissa No.4 is under streamlet but that land was not shown in possession of occupant of Hissa No.6. It is on the basis of such facts noticed by the Civil Judge that he inferred that the plaintiff was not disclosing true facts. The first appellate Court also did not consider the measurement map as basis for the purpose of locating the encroachment. There appears confusion created in the mind of the learned Judge of the first appellate Court. The confusion is attributable to omission while giving direction to carry out the measurement, in respect of composite nature of the measurement. In my opinion, it was desirable to direct composite measurement of all the three (3) lands, including the measurement of the area under the streamlet, the area under Potkharab land and to fix the boundaries of the three lands of the parties. 5 5. Considering the foregoing reasons, it would be in the interest of justice and in the fitness of the things to direct composite measurement of the lands S.No.25 of all the Pothissas. Hence, the appeal is partly allowed. The impugned judgment rendered by the first appellate Court is set aside. The matter is remitted to the first appellate Court and the appeal (RCA No.49/2004) restored to its original position. If the appellant would deposit the necessary fees required for composite measurement of the three lands, within a period of six weeks then the first appellate Court shall issue direction to the DILR to measure the three lands together and to fix the boundaries thereof as well to indicate the area covered by the streamlet, Potkharab, if any, encroachment if any and to submit detail report along with map within a period of six (6) weeks thereafter. The parties will be entitled to adduce further evidence as may be deemed proper before the first appellate Court itself, in addition to the evidence which is already on record. The first appellate Court shall thereafter decide the 6 appeal afresh. The appellant to pay costs of Rs. 1,000/- (Rupees one thousand) to the defendant No.1 and Rs.1,000/- (Rupees one thousand) to the heirs of defendant No.2 and Rs.1,000/- (Rupees one thousand) to the defendant No.3 as a condition precedent for the purpose of restoration of the appeal before the first appellate Court. If the said amount of costs and the amount of the Commissioner's fees is not deposited within six (6) weeks in the first appellate Court, the Second Appeal be deemed as dismissed without reference to the Court. (V.R.KINGAONKAR,J.) asp/office/sa39909