-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.429 OF 2008. Mohd. Unmmid Mohd. Sarwar --versus-- Mohd. Iqbal Mohd. Mobin ----------------------------------------------------------------------------------------------------------------------------------- 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 : MARCH 2, 2009. The parties were heard on last occasion as it was found that the report of measurer could not have been discarded outright. The parties were therefore, informed that the Court may dispose of the appeal after hearing the parties on that issue on next date. Accordingly, the parties are heard today. Advocate Shri A.V. Bhide, for appellant contends that the controversy whether field purchased by the appellant / plaintiff is 1.92 H. or only 1.82 H. is not very relevant because the surveyor has shown that the appellant/plaintiff is in possession of 1.88 H. land. He further states that in view of this position when the surveyor demonstrated that the present respondent / defendant has encroached upon 2R portion of appellant, the said report could not have been discarded only on the ground that there is -2- encroachment by another person from other side i.e. Western side of the plaintiff's field. He states that the approach of both the Courts below is erroneous and evidence of measurer has been incorrectly discarded. Advocate Shri K.R. Lule, for respondent on the other hand states that mutation entries produced by the plaintiff vide Exh.50 reveals the area to be in possession of his vendor is 1.82 H. He states that it is therefore apparent that the plaintiff could not have obtained sale deed of 1.92 H. of land from said Vendor. According to him in this background, the Courts have found that there is encroachment even from Western side in the field of the plaintiff and as the field of present respondent/defendant is not measured, measurer is not found to be trustworthy. It is therefore, apparent that the question – Whether in above circumstances the report of measurer could have been discarded by the Courts below ? Falls for consideration as substantial question of present appeal. The said measurer has in un-equivocal terms stated that there is encroachment to the extent of 2 R. in the land of appellant / plaintiff. Not only this, in cross examination he mentioned that the area in possession of appellant / plaintiff as 1.88 H. It is to be noted that if importance is to be given to the area -3- in possession of Nandkishore Agrawal i.e. the vendor of the present appellant, the area in possession of appellant could not have been more than 1.82 H. The area as shown by the said surveyor in possession is 1.88 H. Hence in these circumstances, the revenue entry at Exh.50 cannot be determinative about the exact area purchased by the appellant/plaintiff. Similarly, merely because there is encroachment from other side on the field of the appellant/plaintiff, that itself cannot and is not sufficient to mean that the defendant has not encroached upon the plaintiffs land. The reason given by the courts below to discard evidence of report of measurer is therefore irrelevant. Both the judgments shows total non application of mind. The Court below has to find what was the exact area purchased by the plaintiff and whether said area was/is in possession, as this has not been done and only by giving irrelevant reason report of measurer has been discarded I find that the matter needs to be remanded back to the trial Court for taking decision afresh in accordance with the law. During this fresh trial, it is open for the parties to tender evidence on record in respect of correct position including the exact area of land purchased by the appellant / plaintiff and also the extent of -4- encroachment on the land of appellant / plaintiff by the defendant and even by any third person. Similarly, the appellant can also demonstrate that the defendant is possession more area than he is supposed to be, in accordance with the law. In view of this finding, the impugned judgment dated 29.01.2002 passed by the Joint Civil Judge, Junior Division, Khamgaon in Regular Civil Suit No. 129/1996 as also the judgment and decree of Lower Appellate Court dated 26.6.2008 passed in Regular Civil Appeal No. 23/2002 are quashed and set aside. The proceedings in Regular Civil Suit No. 129/1996 are restored back to the file for taking decision afresh in accordance with the law, after giving parties opportunity to adduce evidence. As the question of encroachment is required to be re- examined, it is apparent that position of Dhura and alleged right of way is also again required to be decided in accordance with law. As the matter is being sent back, the trial Court shall endeavor to decide the suit as early as possible and in any case within a period of one year from the date of communication of this order to it. Second Appeal is thus allowed in aforesaid terms, with no orders as to cost. -5- JUDGE Rgd.