1. This second appeal is directed against the judgment and order dated 20th July 2012 passed by the District Judge-I, Akola in Regular Civil Appeal No. 3 of 2009. The said appeal arose from judgment and decree passed by the Joint Civil Judge JD, Akola in Regular Civil Suit No. 6 of 2009 whereby suit was dismissed.

2. Facts, in brief, are that the plaintiffs own and possess field Gat No. 26 admeasuring 5.88 HR situated at village Dhamana Bk, Tahsil Akot, District Akola. Plaintiffs complained of encroachment on their land by adjacent land owner and, therefore, on 24.6.2004, Taluqa Inspector of Land Records, Akot was approached for encroachment of the suit land. Measurement was done and according to TILR, southern side land-holder (defendant) made encroachment over the land of plaintiffs to the extent of 00.46 HR. Plaintiffs, therefore, served the defendants with legal notice dated 22.9.2004 calling upon them to remove encroachment. Inspite of receipt of notice defendants did not remove encroachment and hence, plaintiffs were constrained to file suit.

3. Defendants filed their Written Statement and denied all adverse allegations. They contended that on southern side of Gat No. 268 of village Dhamna, there is agricultural land of village Rel and in between the two villages boundaries, there is “Shivdand” of the Government which the TILR has not shown in his map. At the time of measurement, TILR failed to show plaintiffs’ sub-division and for these two reasons, measurement is rendered illegal. They prayed for dismissal of suit.

4. The Trial Court, upon evidence, proceeded to dismiss the suit finding that plaintiffs have failed to prove the encroachment by the defendants and also refused to order enquiry into mesne profits, as prayed for by the plaintiffs.

5. Plaintiffs who were aggrieved by dismissal of suit claim, preferred 1st appeal which also came to be dismissed by the District Judge-I, Akot.

6. This appeal was admitted on the following substantial question of law –

“Whether the Courts below were right in not directing re-measurement of the suit field and the adjoining lands, by following due procedure governing the measurements?

The answer is in the negative for following reasons –

7. Learned counsel for the parties took me through the record and judgments of the Courts below. Learned counsel for appellants relied upon ruling in Vijay Shrawan Shende & ors v. State of Maharashtra reported in 2009 (5) Mh. L. J. 279 in order to submit that the substantial question of law formulated herein is already answered by this Court in the ruling cited. Relevant substantial question of law framed in the case law cited, reads thus –

“If a party to suit proves the act of encroachment, but fails to prove extent thereof by legal evidence, will it be open to the Court to astutely dismiss the suit, or cause proper local enquiry and render a fresh report under Order 26, Rule 9 of Civil Procedure Code, and secure on record report of legal evidence as to fact of matter about encroachment, or otherwise as to the allegation in plaint and fact of encroachment proved by the party to suit ?”

The said question of law was answered as under:

“It would not be proper to dismiss the suit simply because the Court Commissioner has not adopted a correct procedure of measurement and the exercise of re-measurement, according to rules, will have to be got done through Court Commissioner again and again, if necessary, because failures of Cadesteral Surveyors are not attributable to parties to the suit.”

8. Learned counsel for respondents who opposed this appeal, submitted that both the courts below recorded concurrent findings of fact after going through the evidence including plaint map and, therefore, as plaintiffs had failed in courts below, the appeal ought to be dismissed.

9. In cases to determine encroachment, it is always desirable to have disputed suit property measured by competent surveyor to find out encroachment and its extent. Oral evidence cann