VIBHA KANKANWADI, J.

1. Present appeal has been filed by original plaintiff. He had filed Regular Civil Suit No. 143 of 2010 for possession of encroached portion of the land from defendants. He had come with a case that he is the owner of agricultural land bearing Gut No. 89/1 admeasuring 83 R situated at Pimpalgaon Barva, Tal. Bhokardan, Dist. Jalna. The total area of Gat No. 89/1 was 10 H, 45 R; however, he has sold 9 H, 62 R. Now area admeasuring 83 R is remaining with him. According to him, the defendants have made encroachment over the same. Hence, suit has been filed for removal of encroachment and possession.

2. Defendants were duly served but failed to appear, hence the matter proceeded ex-parte against them.

3. Plaintiff has filed his affidavit-in-chief and then examined the Taluka Inspector of Land Records (hereinafter referred to as TILR). The cadastral surveyor has deposed that he has measured land Gut No. 89/1 and found that defendants have encroached on the land of plaintiff. Learned Civil Judge Junior Division has decreed the said suit on 02-05-2015.

4. Original defendants challenged the said judgment and decree before District Court Jalna by filing Regular Civil Appeal No. 46 of 2017. The said appeal was heard by the learned Ad-hoc District Judge-3, Jalna. After hearing both sides, the learned First Appellate Court has allowed the appeal and set aside the judgment and decree passed by learned Trial Court. Hence, the original plaintiff has filed this Second Appeal.

5. Heard learned Advocate Mr. Arvind Deshmukh for appellant and learned Advocate Mr. S. B. Bhosale holding for Advocate Mr. R. B. Singare Patil for respondents. It will not be out of place to mention that in view of order passed by this Court on 05-03-2019, the appeal has been heard finally at the stage of admission itself. Parties were put to notice in respect of the same.

6. It has been vehemently submitted on behalf of appellant that learned First Appellate Court erred in setting aside the decree passed by the learned Trial Court. First appellate Court has deprived the plaintiff of his legitimate right of restoration of property. The evidence of TILR has been disbelieved on technical ground, which was never raised before the Trial Court. Dismissal of suit on the ground of non-compliance of Order VII Rule 3 of Code of Civil Procedure is hyper technical. When defendants preferred not to contest the matter even after due service of summons, then something can not be inferred in their favour without raising the said point at appropriate stage. It has come on record that presently, plaintiff possess only 35 R land out of 83 R, which has remained with him. It would have been proper for the learned First Appellate Court to remand the matter. If the defendants had any grievance in respect of the measurement, then proper course was to get the land measured again with consent of both the parties. However, dismissal of the suit by allowing the appeal was not a justiciable act. Learned Advocate for appellant has rather prayed for remand of the matter to the Trial Court with direction to have joint measurement.

7. Per contra, the learned advocate for respondents supported the reasons given by first appellate Court. He submitted that when there was no compliance of mandatory provision under Order VII Rule 3 of Code of Civil Procedure, then obvious result was to dismiss the suit. The measurement that was carried out, was illegal. No notice was given to the defendants about the same. Only the land of the plaintiff was measured. Therefore, with these defects, the suit ought not to have been decreed by the learned Trial Court. The said decree has been rightly set aside by the First Appellate Court.

8. Here in this case, the defendants had not appeared before the Trial Court and had not taken any objection regarding the description of the property in plaint. In fact the boundaries have been quoted in the plaint. Map appears to have not been attached. However, the l