JUDGMENT :

S.M. MODAK, J.

1. There was a judgment passed by the District Court, Buldhana thereby reversing the judgment of dismissal of the suit on one hand and remanding the matter for fresh consideration on the other hand. There was a direction to measure entire area of survey no. 22 (of which the encroached portion forms a part). There was a liberty granted to the parties to amend the pleadings on the basis of report of surveyor. The correctness of the said order is challenged before us at the instance of original defendant.

PLEADINGS

2. There was a suit for removal of encroachment and possession. In order to prove the ownership, the plaintiff relied upon the area shown in the 7/12 extract. The plaintiff took the assistance of surveyor from the office of T.I.L.R. Whereas the defendant denied the theory of encroachment. Apart from the denial the defendant went to the extent of explaining as to how the plaintiff got area excess to the area as per the two sale-deeds. He went to the extent of pleading that the excess area was distributed during the consolidation proceeding. At the same time defendant pleaded that distribution was wrong.

FINDINGS

3. After evidence adduced by both the sides, the trial Court was pleased to dismiss the suit. It was mainly for two reasons. One is plaintiff could not prove the ownership of a land shown on 7/12 extract. It was also for the reason that defendant's grievance about the distribution during consolidation appears to be probable and to clear the doubt the plaintiff ought to have examined any Consolidation Officer.

FIRST APPEAL

4. The plaintiff decided to take a chance before the first Appellate Court. He filed an application for amendment of the plaint thereby contending the particulars as to how he got the area shown on 7/12 extract. The Appellate Court reversed the judgment and remanded the matter mainly for following reasons:-

(i) It could not be explained as to how the plaintiff, the defendant and other co-sharers got an area in excess of the area purchased by them in 1948 sale-deed.

(ii) There are defects in the survey carried out by surveyor of plaintiff as well as surveyor of the defendant.

(iii) No joint measurement of the land of plaintiff, land of defendant and land of other co-sharers (each formerly comprising survey no. 22 prior to the consolidation) was not measured.

5. Learned Advocate Shri Deshpande and learned advocate Shri Bhide argued for defendant-appellant and respondent-plaintiff respectively. The following substantial question of law was framed:

“Whether the order of remand passed by the lower Appellate Court conforms to the principles of law under Order XLI, Rules 23-A and 25 of the Code of Civil Procedure.”

So also this Court allowed the appellant to raise the additional grounds. They are incorporated as ground nos. xiii to xvii in the Memo of Appeal.

SECOND APPEAL

6. So whether there was a necessity to remand the matter or whether the First Appellate Court could have decided the appeal on the basis of the evidence available on record is a question. Though the plaintiff has not clarified as to how he become owner of the land shown on 7/12 extract, it was the defendant who pleaded and deposed in his evidence as to how the land was distributed during consolidation. So whether there was any need for the First Appellate Court to take cognizance of the amendment application filed on behalf of the respondent-plaintiff. When the dispute was in between the plaintiff and defendant pertaining to land described as Gat No. 48 and 49 [after consolidation] whether it was open to First Appellate Court under the guise of doing complete justice to appoint a Commissioner for surveying a larger portion of land earlier forming survey no. 22.

SCOPE OF REMAND

7. Learned advocate Shri Deshpande relied upon the following cases of:-

(1) K. Krishna Reddy and Others vs. Special Deputy Collector, Land Acquisition Unit II LMD Karimnagar, Andhra Pradesh, (1998) 4 SCC 163.

Hon'ble High Court remanded the matter while