The duty of the court to ensure substantial cause of justice and the power of remand to achieve this in disputes related to encroachment.

In this appeal a very short question is raised for consideration as to whether in a suit for removal of encroachment if the plaintiff has examined Government Surveyor of the Land Records as a witness and his evidence is not relied upon on the count that measurement of the land carried out by him was not found to be correct and proper, and hence, if the suit is dismissed, whether in an appeal against the said judgment and decree , the first appellate Court can remand the matter for remeasurement of the said land by Government Surveyor, by following proper procedure?

2. The appellant in the instant case is the original defendant who is aggrieved by the order of remand of the suit passed by District Judge 3 Yavatmal vide his impugned judgment and order dated 05/07/2016 in R.C.A. No.32/2007.

3. Brief facts of the appeal, can be stated, as follows :

Respondents herein claimed to be the owners of plot of land, bearing Survey No.194/3 situate at village Ner Dist. Yavatmal. They had purchased it from one Ravindra Ganpat Raut for consideration of Rs.17,000/on 06/05/1985. One field bearing Survey No.196 was situate towards the southern side of the said plot. There was a Sawmill of Gaffar Kacchi in that Survey No.196. Gaffar Kacchi leased out the Saw Mill to Nasibkhan in the year 1978. According to respondents, this Nasibkhan has encroached upon an area admeasuring 1000 sq. ft gradually on the plot of respondents. When respondents noticed the said encroachment, they got the land measured through TILR, who has prepared the map in which the encroached portion was shown by letters A, B, C, D. The respondents, therefore, filed a suit before the trial Court for removal of this encroachment and possession of the encroached portion.

4. Nasibkhan, the appellant herein resisted the suit vide his written statement Exhibit 16, thereby denying the ownership of the plaintiff over the said plot of land and further denying the alleged encroachment. According to him, defendant No.2 Hanifabai was in possession of the disputed area. Therefore, defendant No.2 Hanifabai was impleaded as a party. She resisted the suit vide her written statement Exhibit 48, thereby denying the ownership of the plaintiff over the said plot and also denying the alleged encroachment. According to her, the Saw Mill of her predecessor was already in existence on the said plot of land. Hence there is no question of her making any encroachment. The other defendants in the suit viz. Defendant nos.3 to 5 and 7 also raised similar contentions denying the encroachment.

5. On the respective pleadings of the parties, the trial Court framed issues at Exhibit 156 and one of the issue was whether plaintiff has proved that the defendant had encroached upon the portion marked A, D, E, F as shown in the map drawn by the TILR.

6. In support of his case, the Respondent-plaintiff examined himself and also led the evidence of TILR to prove the map drawn by him, showing the encroachment. The trial Court, on appreciation of the evidence of plaintiff and TILR. came to conclusion that the TILR has not adopted the proper procedure for carrying out the measurement of the disputed area. In this respect, the trial Court also considered the fact that the TILR has not stated anything in respect of finding of permanent marks. He has also not confirmed the boundaries, which he should have done. He then could not state the area of the field Survey No. 194/3 found in the measurement. He further could not state the length and breadth of the alleged encroachment. Hence for various reasons recorded by the trial Court in its judgment, in paragraphs 26 and 27, the trial Court held that the measurement carried out by the TILR is not proper and on the basis of such measurement and the map, the suit instituted by the plaintiff for removal of encroachment and for possession cannot be decreed. The trial Court therefore dismissed the plaintiff's suit.

7. This judgment and decree of the trial Court was taken in appeal by