1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 629 of 2004 Ramchandra Mahadeo Mahale & Ano. Vs. Kashinath Namdeo Wagh & Ano. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri A. J. Khan Adv. for appellant. Shri Y. G. Khobragade Adv. for respondents. CORAM: C. L. PANGARKAR J. Dated: 9 th April, 2008. This second appeal has been preferred by the original defendants. The respondent herein had filed a suit for removal of the encroachment and possession of the encroached land against the present appellant. It was alleged by the plaintiff/respondent that he had got his field 2 measured and it was found that defendant had made an encroachment to the extent of 38 R. of land. It is alleged that the field was measured by the Taluka Inspector of Land Records and he found such an encroachment on the same. He therefore instituted a suit on the basis of the measurement made by the Taluka Inspector of Land Records. The defendant filed a Written Statement and contended that they have not made any encroachment over the field, they have not demolished the Dhura and the suit was liable to be dismissed. Learned Judge of the trial Court found that plaintiff had failed to prove that the defendant had made any encroachment. The measurement was not proper. Holding so learned Judge of the trial Court dismissed the suit. Plaintiff therefore preferred an appeal 3 before the District Judge. It appears that when the matter came up before the District Judge the plaintiff had applied for appointment of Commissioner for measurement of the suit field. Learned District Judge allowed the application and appointed District Inspector of Land Records as Commissioner to measure both the fields i.e. No. 237 and 238 belonging to plaintiff and defendant. District Inspector of Land Records measured both the fields and submitted a report wherein it was found that encroachment was to the extent of 25 R. of land. The learned District Judge relying upon the evidence of the Commissioner appointed by him passed a decree in favour of the plaintiff and thus allowed the appeal. Being aggrieved by that this appeal has been preferred. 4 Learned Judge for the appellant contended before me that there was already a map on record which was drawn by the Taluka Inspector of Land Records and it was found by the trial Court that map was not correct and therefore had rightly dismissed the suit. He submitted that appellate Court could not have appointed a Commissioner without recording a finding that measurement made by the Taluka Inspector was not proper and without recording that finding Commissioner could not have been appointed and the Court could not have taken into consideration the second report of the Commissioner. It appears that the matter was moved before the District Judge for appointment of the Commissioner. The learned District Judge had found that there was a need to appoint the Commissioner in 5 view of the fact that both the fields were not measured and it was also found that it was necessary to measure both fields, without which there can be no proper determination of the question. This Court in a decision reported in Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade 2004(2) Maharashtra Law Journal 722 has held as follows: “Where there is a dispute about an encroachment or dimension of a site, the first essential is to get an agreed map and if the parties cannot agree on one, a Commissioner must be appointed to prepare the same and/or subsequent reference in the pleadings or judgment to place the mark on a map should be referred to this map which must be attached to the decree and signed by the 6 Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case overall again. The appellant/defendant was directed to deliver the possession of 4 gunthas of land which is said to be under encroachment as shown in the map drawn by the surveyor. It appears to be absolutely necessary that the cadastral surveyor ought to have been appointed by the trial Court for taking joint measurements of properties owned by the respective parties. Neither the trial Court nor the appellate Court had appointed a Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure for taking the joint measurements and, therefore, this is a fit case for remand to the trial Court for fresh decision in accordance with law.” 7 It appears from the judgment of the District Judge that the measurement as was made by the Taluka Inspector of Land Records was not correct and therefore it was found that the Commissioner should be appointed. Learned District Judge has referred to the issues framed by the trial Court and even finding recorded by him in his judgment. The Commissioner was examined before the first appellate Court and opportunity was given to the present appellant to cross examine the Commissioner. Learned Judge of the first appellate Court has appreciated the evidence tendered by the Commissioner appointed by the District Judge and has arrived at a right conclusion. It appears from the judgment of the trial Court that the measurement made by the Taluka Inspector of Land Records was apparently not correct inasmuch as he has not 8 measured both the fields which is necessary under law and he had also failed to measure the footpath shown in the map, which had resulted into wrong measurement of the field. Therefore, even if the District Judge appointed a Commissioner to remeasure the field and particularly both the fields, I see nothing wrong in what he has did. He had appreciated the evidence rightly. There is no substantial question of law involved in this appeal. Appeal is dismissed in limine. JUDGE svk