1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.105 OF 2010 with CA NO.9470/2010. Shri Sant Bhagwan Baba Samajik Pratishtna Barshi Road, Beed, and another. - PETITIONER VERSUS Devidas s/o Vishwanathrao Patil - RESPONDENT ***** Mr.KD Bade-Patil, Advocate for Appellants; Mr.Milind M.Patil, Adv. for sole respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 26th November, 2010. PER COURT : 1) Heard. 2) In Regular Civil Appeal No.208/2008 learned District Judge-1, Beed directed remand of the matter by restoring Regular Civil Suit No. 87/2005 to original position by setting aside the dismissal with a direction to carry measurement afresh, is questioned by the appellants (original defendant) in this Appeal from Order. 2 3) After hearing the learned Counsel, following is a substantial question of law, to be adjudicated upon, - “Whether the first Appellate Court was justified in combing the evidence of T.I.L.R., which was already on record and then observing to remand the matter for fresh measurement; appointment of T.I.L.R. with time frame programme.” 4) My attention is invited to the sale-deed executed by respondent in favour of Appellant dated 16th October, 1995 (at page book No. 1650), for an area of 4 acres from land Survey No. 29, totally admeasuring 8 acres and 17 gunthas ( 3 hectares and 41 R.). 5) By inviting my attention to the observations of the learned Judge, the learned first Appellate Court in paragraphs 19, 20 and 21, the learned Counsel for the respondents submits that the exercise that has been done by the learned first Appellate Court was warranted in the fact situation. In order to substantiate his contention, the learned Counsel took recourse to the Judgment of this Court in the matter of Kishanlal Maniklal Rathi Vs. Dinkar Yashwant Patil, reported in 2003 (Supp.2) Bom.C.R. 329 and particularly to the observations of the learned Single Judge flowing in paragraphs 24 and 25 thereof. The learned Judge has observed, - 3 “....In any case, in which there is 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 Judge. In the absence of such a map, the decree is probably meaningless and execution means virtually starting the case over all again. The map should be drawn with the north at the top and letters making points should not be put in side ways or upside down.” There cannot be a quarrel to contest on this legal position as the same flows from judgment of this Court in CRA No.406/1952 decided on 28.1.1953. 6) Let us revert to essential facts for the present controversy. It is not that there was no appointment of T.I.L.R. or land was not measured. The T.I.L.R. as per the evidence has indeed 4 caused the measurement of the disputed property on 5th May, 1998 and thereafter the plaintiff lodged the plaint, seeking removal of encroachment without disclosing that he has got the land measured. It is curious that inquiry in terms of section 85 of the Maharashtra Land Revenue Code, 1966 was effected at the instance of the respondent and the Tahsildar directed to cause measurement. The measurement carried by the T.I.L.R. could not illustrate that there was an area of 9 R. encroached by the petitioners herein. The respondent did not point as to which side the so-called encroached area of 9 R. was located. The other aspect that both the parties have lost track of is, the total area of the land referred above is not taken into consideration. 7) The recitals in the sale-deed illustrate that the respondent facilitated access for user of other land holders, namely, Prakash Hanumant Patil and Natwarlal Buddhadeo, which was from his area of 9 R. Consequently, it could not be gathered that there is encroachment of 9 R. carried/caused by the petitioners. The evaluation of the evidence of T.I.L.R. by the learned first Appellate Court was certainly uncalled for. The other evidence is lost track of by the learned Judge, as one of the witnesses, Dr. Shrihari Limbaji Lahane has communicated, before entering 5 sale transaction though 7/12 illustrated that respondent’s property is 4 acres and 9 gunthas, however, his property was only 4 acres. This aspect is not considered by the learned first Appellate Court. 8) The order of remand was not in tune with the legal position and consequently the substantial question of law is answered in favour of the appellant. 9) In the result the judgment and Order in Regular Civil Appeal No.208/2008 dated 31.3.2010 is set aside. The matter is remanded to the learned District Judge, Beed to re-hear the appeal. Both the parties shall appear before the learned District Judge-1, Beed on 11th January, 2011. The learned Judge shall expeditiously decide the appeal on its own merits in accordance with law. No cost. The Appeal from Order disposed of as above. CA disposed of. (K.U.CHANDIWAL) JUDGE bdv/