(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 814 OF 2009 WITH CIVIL APPLICATION NO. 12820 OF 2009 Nilkanth Raoji Kulkarni, R/o Nadi Hattarga, Taluka Nilanga, District Latur APPELLANT VERSUS 1. Nilkanth Mallikarjun Dhole, R/o Nadi Hattarga, Taluka Nilanga, District Latur. 2. Shivkant Malikarjun Dhole, R/o Nadi Hattarga, Taluka Nilanga, District Latur. 3. Mallikarjun Sambhaji Dhole (Since deceased, through L.Rs. i.e. Respondent Nos. 1, 2 and 4 to 6, who are already on record) 4. Sow. Surekha Bhagwan Patil, R/o Ramling Mudgad, Taluka Nilanga, District Latur, presently at Signal Camp, Near Deshikendra School at Latur. 5. Smt. Komlabai Devidas Patil, R/o Nanand, Tq. Nilanga, Dist. Latur. 6. Suman Kisan Khobare, R/o Nadi Hattarga, Taluka Nilanga, District Latur. RESPONDENTS .... Mr. A.S. Bajaj advocate for the appellant. Mr. P.R. Katneshwarkar, advocate for the respondent Nos. 1 and 6. .... (2) CORAM : M.T. JOSHI, J. DATED : 18th AUGUST, 2011 ORAL JUDGEMENT : 1. Heard. 2. The present Second Appeal arises out of the suit filed by the appellant for removal of encroachment to the extent of 24 Are of land from agricultural property bearing Survey No. 37/B-1 of village Nadi Hattarga owned by him. Before filing of the suit, the appellant/plaintiff got his land measured through the Government Surveyor i.e. Taluka Inspector of Land Records twice. Thereafter, he filed the suit. The Trial Court, however, dismissed the suit on the ground that the measurement carried out was not proper. Therefore, the present appellant preferred the Regular Civil Appeal before the District Court. During the pendency of the said appeal, he again got the land measured through the Taluka Inspector of Land Records and after permission from the Appellate Court, adduced the evidence of the said witness. However, relying on certain admissions given in the cross-examination, the Appellate Court (3) disbelieved his version and accordingly, the appeal was dismissed. 3. Mr. A.S. Bajaj, learned counsel for the appellant/plaintiff, submits that the appellant is helpless in such a matter as only the Government official can measure the land. He submits that though the documents regarding the earlier measurement were not necessary for the next of his measurer, the First Appellate Court had taken the cognizance of the said defects and, therefore, he submits that a substantial question of law arises as to whether the suit or appeal could have been dismissed simply because the Government Measurer has not adopted the correct procedure. He, therefore, submits that the case may be remanded back to the Trial Court wherein, upon application by the appellant/plaintiff, a Commissioner can be appointed who would measure the relevant land. 4. Mr. P.R. Katneshwarkar, learned counsel for the respondent Nos. 1 and 6, submits that no substantial question of law arises in the present appeal. The evidence adduced by both the sides has (4) been appreciated by the Courts below. The plaintiff has to prove his own case. He further submits that the appellant/plaintiff has got his land measured twice before filing of the suit and then for the third time during the pendency of the appeal. Under the circumstances, he submits that the appeal may not be admitted and the submission of the learned counsel for the appellant/plaintiff for remand of the matter may not be accepted. 5. Mr. Bajaj relied on "Vijay Shrawan Shende and others vs. State of Maharashtra and others" 2009 (5) Bom.C.R. 306 wherein relying over various authorities of this Court, the learned Single Judge has held that a substantial question of law would arise if the suit is dismissed because even the Court Commissioner has not adopted a correct procedure of measurement. In that case, ultimately, a fresh Commissioner was directed to be appointed and the matter was remanded back to the Trial Court in the similar situation of facts. On the other hand, Mr. Katneshwarkar submits that in Second Appeal No. 84/2009, decided on 19th January, 2011, another learned Single Judge of this Court has held that in (5) the case of alleged encroachment, the case may not be remanded merely because a Cadestral Surveyor (Government Measurer) has been disbelieved by the trial Court or the First Appellate Court. It was also held that when the plaintiff fails to prefer any application for appointment of Court Commissioner in the Courts below, it would not be proper for remand of the case. However, no earlier judgements of this Court were noticed by the learned Single Judge while delivering the judgement in Second Appeal No. 84/2009. 6. In the present case, the learned Trial Judge as well as First Appellate Judge found fault with the procedure of measurement carried out by the expert i.e. the Government Measurer. Thus, it is not a case where the fact of encroachment has been disproved but a case where the plaintiff/appellant was unable to prove the encroachment solely because the Government Measurement, according to the Courts below, did not properly measure the land. 7. It is to be noted that a detailed Manual of Survey and Measurement is in force which is required (6) to be followed by every Measurer. He has to obtain tippan utara or similar permanent document of the entire Survey Number. Thereafter, he has to find out as to whether permanent signs or fixtures as noted in the official map kept with the D.I.L.R. office are in existence on the spot at the time of measurement. Thereafter, on the basis of the heart-line, base- line, etc. are to be drawn in consonance with the permanent signs that may be found, he has to measure the land and to prepare the map in the exact scale or in proportion to the exact scale of the tippan utara. Then the map of the measurement has to be superimposed over the official map and then and then only, he can conclude about the encroachment or otherwise. 8. In the present case, unfortunately, none of the Government Measurers who were examined in the Courts below, has deposed about any of the procedure. The Government Measurer who was examined in the First Appellate Court merely deposed that he measured the land "as per our method". Thereafter, he went on to make certain statement contrary to the statements (7) made in the Examination-in-Chief. 9. In all these circumstances, a patent error has been committed in disbelieving the case of the plaintiff merely on the basis of improper procedure of measurement carried out by the Government Measurer. Hence, the following substantial question of law as similar to the question that had arisen in the case of "Vijay Shrawan Shende and others vs. State of Maharashtra and others" (supra), arises in the present case : "Whether, in the facts and circumstances of the present case, it would be open to the Court to dismiss the Suit and record negative finding about encroachment due to faulty procedure adopted by a Government Measurer ?" 10. The appeal is, therefore, admitted on the above substantial question of law. The respondent Nos. 2 and 4 to 6 are absent. However, they are served with the notice that the appeal may be finally disposed of at the time of admission stage itself. (8) 11. Considering all the material on record as detailed supra, it is clear that none of the Government Measurers has adverted to the instructions enumerated in the Measurer's Manual as is explicit from the deposition recorded before the Courts below. Therefore, the appellant/plaintiff cannot be faulted for failure to prove his case of alleged encroachment. The substantial question of law is answered accordingly. 12. In the circumstances, the decrees of both the Courts below need to be quashed and set aside and the matter is required to be remanded to the Trial Court, for appointment of a Government Measurer as a Court Commissioner on the application to be filed by the appellant/plaintiff in the Trial Court. 13. In the result, the Second Appeal is allowed. The decrees of both the Courts below are quashed and set aside. The matter is remanded to the Trial Court. The appellant/plaintiff shall move an application before the Trial Court for appointment of a Government Measurer i.e. Taluka Inspector of Land (9) Records as a Court Commissioner. The Court Commissioner shall measure the land in question i.e. entire Survey No. 37, strictly as per the instructions contained in the Measurer's Manual/ current prescribed method, by giving proper notice to all the interested parties and to submit his report in the Trial Court. No orders as to costs. 14. In view of the above directions and disposal of the Second Appeal, Civil Application No. 12820/2009 does not survive and stands disposed of accordingly. Sd/- [M.T. JOSHI, J.] NPJ/sa814-09