2024:BHC-NAG:9079 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO. 336 OF 2018 APPELLANT : Vaikunthrao S/o Parshramji Ingole, (Original Plaintiff) Aged about 60 years, Occupation Cultivator, R/o Karmabad, Tahsil Arvi, Dist. Wardha.

V E R S U S RESPONDENTS : 1. Dnyaneshwar S/o Champatrao Raut, (original defendant) Aged about 60 years, Cultivator, R/o Karmabads, Tahsil - Arvi, Dist. Wardha.

2. The Collector Wardha, Tahsil and District Wardha.

3. The Naib Tahsildar, Tahsil Arvi, District Wardha.

4. The Sub Divisional Agricultural Officer, Sub-Division of Agricultural Deptt. Arvi, Tahsil Arvi, Distt. Wardha.

5. Block (Mandal) Agricultural Officer, Deptt. of Agricultural, Arvi, Tahsil Arvi, Distt. Wardha.

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Shri K. J. Topale, Advocate for appellant.

Shri P. A. Dharaskar, Advocate for respondent No.1.

Shri P. P. Pendke, Assistant Government Pleader for respondent Nos.2 and 3.

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CORAM:- SANJAY A. DESHMUKH, J .

DATED : 18/07/2024.

ORAL JUDGMENT :

1. Admit. Heard finally with the consent of learned counsels appearing for the parties.

2. The substantial question of law formed for decision of this appeal is as follows :

"Was the First Appellate Court illegal and incorrect in not deciding an application at Exh.10 filed by the appellant for carrying out the measurement of the suit property ?"

3. This appeal is preferred against the Judgment and Decree passed by learned District Judge, Wardha in Regular Civil Appeal No.222/2011 dated 31/01/2018. The said appeal was preferred against the Judgment and Decree dated 08/09/2011 passed by learned Civil Judge, Senior Division, Wardha in Regular Civil Suit No.141/2004. The suit was filed for declaration, perpetual injunction and possession of encroached portion out of suit property i.e. agricultural land bearing Survey No. 39.

4. Learned advocate for the appellant pointed out Para No.21 of the Judgment of the learned Trial Court. A Para No.21 of it reads as under :-

"21. Further it is seen that the plaintiff has not adduced satisfactory evidence to locate the area shown by letters A B C D A by examining the expert. The plaintiff has tried to adduce evidence of T.I.L.R., however, after recording some part of his chief-examination, it was noticed that the witness has not brought with him the necessary record hence, he was sent back with direction to bring the necessary record.

Unfortunately, the witness did not turn up and the efforts to secure his presence is proved in vain. Still the fact remains that the plaintiff could not adduce the evidence to establish that the portion shown by letters "A B C D A" is part and parcel of this property. In such type of cases, oral evidence to establish the extent of the property is not useful. If the person wants to establish the extent of his property, it is necessary that it should be measured by the expert and the map prepared by him should be proved. In the present case, such type of evidence is lacking."

5. Learned advocate for appellant submitted that measurement of map is not proved by the appellant plaintiff, therefore, suit was dismissed. The application was submitted by appellant before the First Appellate Court at Exh.10 in which the prayer for carrying out measurement of the suit property was made. Learned First Appellate Court passed an order on it that application at Exh.10 will be decided at the time of final hearing of the First Appeal. It was not decided and appeal was heard and dismissed. It is submitted that the appeal deserves to be remanded for decision on of application Exh.10 and First Appeal on merit thereafter. He is relying upon the following authority.

6. Balvir Singh (now deceased) through his LR Vrs. Kartar Singh and others, (2019 Law Herald 2730) in which the law is laid down that the additional evidence at the appellate stage can be allowed and