The main legal point established is the importance of following the proper procedure and insisting upon the production of primary evidence in cases of boundary disputes and encroachments.

1. By order dated 17.4.2013 the notices were issued for final disposal of this Second Appeal upon substantial question of law formulated as follows:

Whether the findings recorded by the Appellate Court are vitiated on account of ignorance of material aspects considered by the trial Court?

2. Heard submissions advanced on behalf of Shri A.V. Bhide, learned counsel appearing for the appellant who questions the validity and legality of the judgment and order, passed in Regular Civil Appeal No.91 of 2005, decided on 24.8.2012, whereby the judgment and decree passed in Regular Civil Suit No.99 of 1998 was set aside and the suit was dismissed with costs.

3. The facts in a nutshell, are thus:

That the suit land i.e. Gat No.150, situated in village Ambetakli Shivar, Taluka Khamaon, District Buldana, admeasuring 3 H 17 R, was acquired by plaintiff - Sau. Rukhmabai W/o Rambhau Bhad, under registered Sale Deed dated 14.2.1979. Defendant - Sau. Dwarkabai W/o Samadhan Ingle possessed land Gat No.149 which was adjacent on western side to the suit land belonging to the plaintiff. The defendants on their land had removed boundary marks as well as Dhura so as to encroach the suit land to the extent of 25 R.

The plaintiff had applied to the TILR (Taluka Inspector of Land Records) for measurement of the suit land. Accordingly, on 13.1.1998 the measurement was carried out in the presence of adjoining land owners and the boundary marks were fixed by the Government Measurer on 17.1.1998. Thus, the Government Measurer found encroachment made by the defendants to the extent of 25 R.

4. In April, 1998, the plaintiff found when the defendants cultivated their lands, they had encroached upon the plaintiff’s land, hence, the plaintiff had issued notice dated 18.4.1998. The defendant falsely replied the notice and continued to retain the encroachment.

Thus, the suit was filed with a relief for declaration as to encroachment made and mandatory injunction against the defendants to remove encroachment from the suit land belonging to the plaintiff.

In such cases it is essential to get an agreed map/plan on record. In case, parties disagree Court Commissioner can be appointed to prepare an authentic plan/map upon measurement of lands to facilitate end of the real controversy between the parties by proper and effective execution of decree to be passed.

5. The trial Court upon evidence led before it held that in the suit land, area of about 25 Ares belonging to the plaintiff was encroached upon after crossing over Bund of their field. It is required to he noted that Government Measurer – Sukhdeo Sampatrao Salve was examined as plaintiff’s witness No.3 and he also deposed as to measurement map which was exhibited (Exhibit-78). Thus, on the basis of the deposition by Sukhdeo, the learned trial Judge answered issue Nos.1 and 2 in favour of the plaintiff. Considering the documentary evidence Exhibit-78 which indicated existing boundary to the Dhura between Gat Nos.149 and 150 shown by dark line and also dotted line which indicated the existing possession of the defendants on the eastern side of Dhura shown by dotted lines. That being so, the learned trial Judge decreed the suit declaring that the plaintiff as the owner entitled to encroached portion of 25 R land situated in Gat No.150 upto the common Dhura and, therefore, the defendants were directed to hand over the possession of encroached portion of 25 R land which was situated on the eastern side of common Dhura of Gat No.150 and consequently restrained the defendants from encroaching over any portion of the land in Gat No.150.

6. Shri Bhide, learned counsel appearing for the appellant, argued that the trial Court had rightly decided the suit by decreeing the same on the basis of the evidence of the Government Measurer and the documentary evidence deposed to by him. But, the First Appellate Court considered it necessary that A-Sheet instead of C-Sheet in respect of measurement of the suit land from the Government