-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.274/2006 Smt. Noor Bano Mehboob Khan - versus- Shri Kisan Atmaram Kale ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 29, 2009. Heard Shri Shinde, Advocate for appellant and Shri Tathod, Advocate for respondent, finally. Plaintiff filed suit for removal of encroachment contending that one Mohd. Illiyas who had earlier purchased part of her land and prepared layout therein, had in the shape of plot no.29 encroached upon the remaining part of her land. It is not in dispute that adjacent to the lands sold to Mohd. Illiyas plaintiff has got portion admeasuring about 34 gunthas belonging to her. The Trial Court decreed the suit by relying upon the evidence of measurer P.W.2 – Shri Gore. After that decree, defendant no.1 also compromised the dispute with present plaintiff/appellant. In appeal filed by defendant no.2 Lower Appellate Court found that measurer Shri Gore -2- to whom a plot was sold had some bias in favour of the plaintiff, did not measure the layout of Mohd. Illiyas. It found that though said layout as sanctioned was only in relation to 28 plots, creation of plot no.29 therein by itself was not sufficient to warrant a finding that land of plaintiff was encroached. As it found that the land of Mohd. Illiyas was not measured, it allowed the appeal filed by defendant no.2 and dismissed the suit in so far as the defendant no.2 is concerned. During hearing, the substantial question of law which cropped up is - Whether land of Mohd. Illiyas ought to have been measured to find out the alleged encroachment ? P.W.2 Shri Gore, is alleged to have purchased part of land from plaintiff and therefore bias was alleged against him. His evidence is appreciated in detail by the Lower Appellate Court. Lower Appellate Court has noticed some procedural errors in his measurement. Not only this, it also found that he did not measure the layout of Mohd. Illiyas to find out whether he was in possession of area more than what he purchased from present plaintiff / appellant. This appreciation cannot be labeled to be either erroneous or perverse. However, it is to be noted that sanctioned layout is only in -3- relation to 28 plots and hence, carving out plot no.29 by Mohd. Illiyas and its sale by present respondent / original defendant no.2, itself appears to be prima facie a suspicious circumstance. In these circumstances, I find that remand of the matter to Trial Court was necessary in order to give both the parties a fair chance. It is to be noted that defendant no.1 against whom there were similar allegation of encroachment had ultimately compromised the dispute with the plaintiff. At this point, the learned counsel for the parties agree that measurer to be appointed should be an independent measurer and Gore should not be again asked to conduct the measurement. In the circumstances, without going into more depth of the controversy, I find it appropriate to remand the matter back to Trial Court so as to enable it to appoint an independent measurer i.e. T.I.L.R., for measuring the land of plaintiff as also land of Mohd. Illiyas and to submit his report before the Trial Court. The Trial Court shall after receipt of that report proceed further with the trial. The observations made by this Court about compromise with defendant no.1 or about carving out of plot no.29 are only prima facie and with a view to emphasis the need of remand in the matter. The same shall not influence -4- the Trial Court and the Trial Court is free to reach to its own findings, after parties adduce their evidence and after receipt of report of T.I.L.R. Second Appeal is thus allowed. No cost. JUDGE Rgd.