{1} IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.300 OF 1991 Atmaram s/o Annasaheb Deshmukh R/o Dhoksal Tq. Partur Dist. Jalna APPELLANT VERSUS Dagdu Ramrao Deshmukh R/o Dhoksal Tq. Partur Dist. Jalna RESPONDENT *** Shri A.G.Dalal, advocate holding for Shri V.D.Salunke, advocate for appellant. Smt. Asha Rasal, advocate for respondent. *** Coram : K.U.Chandiwal, J. Date: 23rd June 2009. ORAL JUDGMENT: 01- Heard learned counsel extensively. 02- The plaintiff asserts that his property land S.No.40 Hissa No.2 to the extent of 17 R was encroached by the defendant. The learned Civil Judge, Junior Division, Partur by judgment dated 14th Feb., 1983 dismissed the suit. Aggrieved plaintiff assailed the judgment before the learned District {2} Judge in RCA No.35/1983 and the learned District Judge by judgment dated 17th Dec., 1990 found that there was encroachment on 17 R as per the map Ex.44 and the plaintiff to be entitled to get the encroachment removed. This judgment of the appellate Court is challenged by the defendant on several grounds. 03- On 19/09/1991 the appeal is admitted on ground Nos.6, 7, 8 & 9 mentioned below to be substantial questions of law; vi) The learned lower court has taken wrong view regarding the alleged measurement of the suit filed by M.C. Inspector. The learned Court should have observed that the alleged measurement done in absence of the defendant is not binding on him this substantial question of law is not considered by the lower appellate Court. Vii) The learned court erred in holding that the defendant has not approach to the higher authorities against the measurement. The learned court has not applied his mind because, when the measurement is not done in presence of the defendant, and he did not know about the measurement therefore, there is no question of filing appeal and to approach the higher authorities. Viii) The learned appellate Court should have considered that farefar of the suit field does not {3} discloses that the plaintiff is the real owner of the suit land. The Farfare had taken on the basis of cultivation therefore, it cannot be said that the plaintiff is a owner of suit land. The view taken by the learned appellate Court saying that the encroacher can file the suit against other person is incorrect in view of the circumstances and facts of the present case. ix) That the view taken by appellate court that the land was measured in present of witness of plaintiffs, therefore, defendant is bound by that is incorrect. On the contrary the measurement of the land carried out in absence of concern affected persons are not binding on them. In view of this the learned appellate Court should have dismissed the appeal. 04- With the assistance of the learned counsel I have gone through the evidence of Cadastral Surveyor PW-3 Sopan. On the basis of plaintiff’s application for causing measurement of the suit field, he caused measurement of S.No.40 Hissa No.1 & 2 in presence of plaintiff and defendant. He drew sketch map with measurement. He found owner of field S.No.40 Hissa No.3 had encroached to the extent of 17 R upon the field of S.No.40 H.no.2 of the plaintiff towards south side. He then fixed the boundary mark of the suit field as per the measurement and then he prepared map in presence of panch. The said map is produced at Ex.44. {4} 05- This is the crucial evidence in the matter turning the table. The ownership of defendant is said to be on S.No.40 H.No.3 and it was alleged that the defendant has encroached to the extent of 17 R land. Unfortunately in the above evidence PW-3 Sopan does not indicate that he has caused measurement of the defendant’s portion of the land S.No.40 H.No.3. In the absence of measurement, there was no justification on the part of learned Cadastral Surveyor to aver that there was an encroachment of 17 R land upon field S.No.40 H.No.2 of the plaintiff towards south side. This major blow in the matter has caused loss to the plaintiffs assertion. 06- I do not wish to comment about denial of title by the defendant even for S.No.40 H.No.3 as the appellate court in para no.8 of the judgment based on revenue record, entries in the ownership and possession column found that it was defendant who owns S.No.40 H.No.3. 07- The fact remains there is no independent measurement of S.No. 40 H.No.3. Consequently the order under challenge will not be sustainable. However, due to defiance by PW-3 Sopan, the plaintiff should not be the victim, to defeat his assertion. Consequently the matter is remanded to the learned court of first instance with necessary directions. {5} ORDER The appeal is partly allowed. The matter is remanded to the Civil Judge, Junior Division, Partur with following directions; a- The parties are directed to appear before the Court of first instance on 26th August 2009. b- Upon the plaintiff making an application for causing measurement of entire land S.No.40 with different sub-divisions, the learned judge will issue necessary directions for such measurement by the office of Taluka Inspector of Land Records within a time frame schedule and allow evidence to this effect of the Cadastral Surveyor and dispose of the suit within one year from receiving the record. No costs. c- Needless to add, failure on the part of the plaintiff to make an application with payment of necessary charges for such measurement, the course will be, in dismissal of the suit. [K.U.CHANDIWAL] JUDGE /mda/0609/sa300.91