- 1 - sa44.19.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD 910 SECOND APPEAL NO. 44 OF 2019 Damu Ravji Dawange (deceased through LRs) & others ….Appellants VERSUS Bajirao Genu Dawange & others …..Respondents ….. Mr. Mr. A. D. Shinde, Advocate holding for Mr. K. B. Jadhav, Advocate for Appellants. Mr. S. S. Chapalgaonkar, Advocate for Respondent Nos. 1 to 3. CORAM : R. M. JOSHI, J. DATE : 5th FEBRUARY, 2025. PER COURT : 1. During the course of hearing, it is pointed out to this Court that this Court by order dated 09.03.2022 on the basis of a joint pursis filed by appellants and respondents, directed joint measurement to be carried out by the TILR. This Court is informed that pursuant to the said order, joint measurement is carried out and report of the Surveyor is placed on record. Though learned counsel for appellants admits the said report, learned counsel for respondents disputes the same. - 2 - sa44.19.odt 2. In the second appeal, issue with regard to the proof of the said report cannot be gone into for the first time. 3. Section 83 of the Evidence Act requires a map prepared for a specific purpose to be accurately proved. Herein this case, TILR is appointed to ascertain the alleged encroachment caused by Defendant No. 1 in a disputed way between two lands. As such, the said map is required to be proved accurately. The parties cannot be asked to lead evidence in this second appeal. Moreover, no purpose would be served by directing the Trial Court to record finding on the said issue and then to decide the second appeal. Doing so will lead to denial of a right of first appeal to the aggrieved party on such findings recorded by the Trial court. In the circumstances, this Court is left with no other alternative but to relegate the matter back to the Trial court for decision afresh on the basis of proof of measurement carried out during the pendency of this appeal. 4. In view of this, the impugned judgment and decree is set aside. Regular Civil Suit No. 7/1998 is relegated back to the Trial Court for decision on the basis of fresh measurement carried out by - 3 - sa44.19.odt TILR and to record finding as to whether the encroachment on the common road caused by the defendants is proved. 5. Since the suit is of the year 1998, Trial Court is directed to decide the same within a period of three months from today. It will be open for the Trial Court to refuse unnecessary adjournment, if sought by the parties. Parties are directed to appear before the Trial Court on 15.02.2025. 6. Pending civil application, if any, does not survive and stands disposed of. ( R. M. JOSHI) Judge dyb