1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 452 OF 2005 (Kewalram Digamber Motghare & Anr. vs. Trimbakrao Harbaji Chinchalkar & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 10, 2009. Heard Shri Mehadia, learned counsel for the appellants – original defendants and Shri Mishra, with Shri Karade, learned counsel for respondent No.1 – original plaintiff. The challenge in this Second Appeal is to reversing appellate Court judgment. The suit filed by the plaintiff for recovery of 0.65 R (0.28 Hectare) area from Survey No. 649/B (New Survey No. 1163) Mouza - Kosara was dismissed by the trial Court and lower Appellate Court has decreed that suit. After hearing learned counsel on the last date, it was felt that one of the questions involved in present matter may be “Whether the importance was to be given to the boundaries mentioned in the sale deed or to the area shown as sold thereunder ?” Time was given to the parties to argue the matter on this question and accordingly, I have 2 heard both the learned counsel on said question today. Shri Mehadia, learned counsel has contended that knowledge of encroachment is not appropriately pleaded anywhere and has not come on record. Shri Mishra, learned counsel states that it was always the case of the plaintiff/ respondent No.1 that he was in cultivating possession of the said portion and as his way to that portion was blocked, there was dispossession and encroachment. He further argues that as this controversy was not specifically raised either before the trial Court or before the lower appellate Court, the necessary facts and evidence has not come on record. He stats that lower appellate Court which is supposed to be final Court on facts, has recorded a finding in favour of Respondent No.1 after appreciating the evidence of Court Commissioner and said finding cannot be disturbed. In the alternative, he submits that the issue can be directed to be reconsidered by lower appellate Court in accordance with law on the point and evidence on record. Shri Mehadia, learned counsel contends that as the substantial question of law arises, it needs to be adjudicated by this Court or then the 3 matter may be remitted back to lower appellate Court. As I find that the question as raised above falls for consideration and as I also find that lower appellate Court has not applied its mind to said question and therefore there is no definite finding of fact as of today on record, I am inclined to remand the matter back to lower appellate Court as suggested by both the learned counsel. In the circumstances, the impugned judgment dated 31.3.2005 delivered by the Second Ad-hoc District Judge, Bhandara, in Regular Civil Appeal No. 191 of 1991 is hereby quashed and set aside. The matter is remanded for fresh consideration in accordance with law. It is made clear that the said Court is free to find out whether in present circumstances, boundaries as mentioned in the sale deed or then area as shown therein will prevail. The observations of this Court made above are only for the purposes of prima facie showing that the substantial question of law for admitting the Second Appeal was available in the matter. This Court has not considered the said question on merits and has not answered it in any way. The lower appellate Court to apply its mind independently to all aspects 4 including the above aspect. As the matter is being sent back, the appellate Court to decide the matter as early as possible and in any case by 31st July 2009. JUDGE *GS.