1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.295 OF 2006. Bhima Bandu Wani deceased through legal representatives Sindhubai W/o Bhimashankar Lathe and others ... Appellants. Versus Abdul Gani Sk.Kadar Musalman deceased through legal heirs Gulam Nabi Abdul Gani and others ... Respondents. ... Mr.V.Y.Patil, advocate for the appellants. ... CORAM : S.V.GANGAPURWALA,J. Date : 21.09.2010. PER COURT 1. The present Respondents had filed suit for possession in respect of Kiosk (Pan Tapari) admeasuring 5x7 fts. 2 2. It was the case of the plaintiffs that they own S.No.113/2A and house property No.1799 is a part of the said survey number and the Pan Tapari is situated in the said house property. The matter was twice remanded by the appellate Court. The appellate Court had remanded the matter to the trial Court with following observations : "Therefore, I am of the opinion that the matter will have to be remanded back to the lower Court with the direction that the lower court should allow the application of the plaintiff for appointment of Commissioner for getting the suit site measured and after receiving the commissioner's report and after hearing the parties, the lower court should decided as to whether the Pan-Tapari area of defendant No.1 is situated on the house property No.1799 of the plaintiff or not and then decide the matter afresh in the light of the 3 aforesaid directions. It is needless to state that if the Pan-Tapari area is found to be on the house property No.1799 of the plaintiff, the plaintiff's suit will succeed and if it is not, his suit will fail" (relevant para No.18 on page 13)." The trial Judge on considering the report of the Commissioner found that the said Pan Tapari is not situated in house property No.1799 but as per the Commissioner's report, the same is situated in S.No.113/2A but as the order of the remand did not specify about S.No.113/2A, the trial Court did not grant decree for possession although on all other issues it held in favour of the plaintiffs. 3. The plaintiffs preferred an appeal bearing RCA No.198/1997. The appellate Court held that the plaintiff has proved its title over the suit property and the fact that he is owner of S.No.113/2A and further that the Pan Tapari in 4 question is situated in S.No.113/2A as per the Commissioner's report. In light of the same, the appellate Court passed a decree for possession in favour of the plaintiffs. The defendants aggrieved by the same have approached this Court. 4. Mr.Patil, learned counsel for the appellants contended that when it was a specific case of the plaintiffs that the said Pan Tapari is part of house property No.1799 and the matter was also remanded by the appellate Court on that count only and when it was found by the Commissioner that the said Pan Tapari is not part of House property No.1799 then in such circumstances, the trial Court had rightly dismissed the said suit and the appellate Court while reversing the said finding of fact had committed an error. According to him, the appellate Court could not have travelled beyond the terms of the order of remand passed earlier. 5. Perusal of the judgment of the appellate Court, it is manifest that the appellate Court has considered that house 5 property No.1799 is a part of S.No.113/2A and even as per the Commissioner's report, the same is situated in S.No.113/2A. In such circumstances, the appellate Court has rightly held that the plaintiffs can not be non-suited on that sole count. Further the appellate Court has also taken into consideration the boundaries which were given by the plaintiffs. The appellate Court was right in observing that the suit could not have been decided in a pedantic manner but over all evidence and the circumstances ought to have been taken into consideration. It has been held that the description of the land which was given in the plaint shows that the land under S.No.113/2A was mentioned. 6. In light of the same, no substantial question of law is involved. As such the Second Appeal is dismissed with no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does not survive and it is 6 accordingly disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa295.06