1. This second appeal is directed against judgment and order dated 6.8.2012, passed by the learned District Judge-I, Akot, in Regular Civil Appeal No.25 of 2009, whereby the appeal was dismissed, which arose from judgment and order dated 18.6.2007, passed by the learned Joint Civil Judge Junior Division, Telhara, in Regular Civil Suit No.73 of 2005, whereby the suit was decreed for possession of alleged encroachment portion of 25R land out of Survey No.47/7-A admeasuring about 2.64R claimed as belonging to the plaintiff. The agricultural land is situated at village Telhara (Bk.), Taluka Telhara, District Akola.

2. The substantial question of law is to be decided, "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?

3. The grievance of Shri A.B. Mirza, learned counsel appearing for the appellant, is that in the trial Court the plaint did not describe the disputed immovable property as required under Order VII Rule 3 of the Code of Civil Procedure even in the absence of full description as required by law in the plaint, the learned first appellate Judge and the trial Judge proceeded to decree the suit for alleged encroached portion.

4. The reference is made, by Shri A.B. Mirza, learned counsel appearing for the appellant, to the previous ruling by this Court, in the case of Manohar Mahadeorao Pagrut vs. Sau. Sunanda Ramdas Tharkar, reported at [2008]3 Bom CR 4 in which this Court had considered the principle in such cases in paragraph Nos.7 and 8, as quoted below, thus:

“7. Normally, if the measurement is done by a cadastral surveyor for ascertaining the encroachment and at that time only both the lands are measured on the basis of permanent boundary marks or admitted boundary marks, any question of further evidence would not arise.

8. Admittedly, in the present case, when the cadastral surveyor admits that on two sides, which are, in fact, the sides of the then alleged encroachment, the boundary marks are not found. To have a correct approach for ascertaining the area of actual possession and then finding whether there was an encroachment, it is necessary that both the lands should be measured, exact dividing boundary line should be located and it can be found out whether the party, against whom encroachment is alleged, has excess land in possession. If the finding could be otherwise, the story of encroachment would not be proved may be that the plaintiff has lost her land and the said loss could be due to encroachment by any person owning land surrounding the plaintiff’s land.”

Thus, in order to ascertain the encroachment over immovable property if suit land is measured by a Cadastral Surveyor concerned on the basis of the permanent boundary marks or admitted boundary marks, then there would be no requirement of further evidence in the case.

5. Thus, a Cadastral Surveyor fixing the boundary marks need to ascertain the actual physical possession of the suit land and to find out whether the suit land is encroached upon which may be indicated in the measurement map/plan drawn on the scale.

6. Thus, fact finding regarding removal of encroachment based on measurement done by the Cadastral Surveyor becomes easy more so when the actual measurement and the fixation of boundary marks are carried out in the presence of land owners concerned or those who are in possession of adjoining lands. In the absence of any map/plan drawn by the Competent Surveyor, the trial Court in such cases may appoint a Court Commissioner in order to ascertain boundaries of the suit field and then to decide whether on the basis of the evidence led before it any encroachment was made. If so, decree may be passed for removal of encroachment, if any, found on the basis of measurement plan/map drawn by the competent survey Official to the appropriate scale.

7. The reference is also made, by Shri Mirza, learned counsel appearing for the appellan