JUDGMENT A. S. Chandurkar, J -The learned counsel for the parties have been heard on the following substantial questions of law : (1) Whether both the Courts below were justified in ignoring and discarding the cogent testimony of the TILR Surveyor, Shri Purshottam Barapatre (PW-3) as well as the record of the survey/measurement done by him (Map A-prat, Map K-prat and the original Mojni Prakaran) on the ground that notice of the survey was not given to the defendants, especially when categorical statement of the plaintiff and the surveyor Shri Barapatre in their evidence stating that notices were given to the defendants had gone unchallenged in cross examination ? (2) Whether both the Courts below were justified in overlooking and ignoring the certified copy of the Map K-prat (Exh.53) showing the extent of the encroachment on the suit field, especially when the extent of the encroachment shown on the Map A-prat is not disputed and it has come on record that the Map K-prat of the survey/measurement is a copy of the Map A-prat? (3) Whether the lower appellate Court has erred in law in rejecting the appellant''s application, Exhibit-12 dated 26/03/2012 filed under Order XXVI Rule 9 and 10 of the Code of Civil Procedure for appointment of Court Commissioner in order to investigate and measure the land in dispute as well as the land of the appellant and whether the suit deserves to be remanded back to the trial Court after appointment of Court Commissioner to measure the disputed land and to decide the suit afresh after consideration of the report submitted by the Commissioner ?" 2. Xxx XXX XXX 3. Xxx XXX XXX 4. The appellant is the original plaintiff who has filed the suit for possession after removing the encroachment alleged to have been committed by the defendants. According to the plaintiff she is the owner of field Survey Nos.22 and 25, both measuring 2H 88 R. On the southern side of that land it is alleged that the defendants have constructed their huts by encroaching upon the plaintiff''s field. The plaintiff therefore applied for having her suit field measured by the Taluka Inspector of Land Records. This measurement was carried out in which it was found that the defendants had encroached upon 0.05 R land. The plaintiff therefore filed the aforesaid suit seeking possession of the encroached portion. The plaintiff therefore applied for having her suit field measured by the Taluka Inspector of Land Records. This measurement was carried out in which it was found that the defendants had encroached upon 0.05 R land. The plaintiff therefore filed the aforesaid suit seeking possession of the encroached portion. In the written statement the aspect of encroachment was denied. According to the defendants they were residing on the constructed portion since the time of their father. 5. The parties led evidence before the trial Court. The plaintiff examined herself as well as the Surveyor who had measured the suit field. The defendants also examined themselves. The trial Court after considering the evidence on record held that the plaintiff had failed to prove the encroachment in question and thus dismissed the suit. The Appellate Court confirmed that decision. 6. Shri H. V. Thakur, learned counsel for the plaintiff submitted that both the Courts have found that the measurement carried out by the Surveyor as per Exhibit-53 was not after following the due procedure. There was a dispute as to whether any notice was issued to the defendants before the measurement was carried out. It was submitted that the Appellate Court in paragraph 33 of its judgment has disbelieved the measurement carried out by the Surveyor on the ground that the relevant rules of measurement were not duly followed. It was further submitted that during pendency of the appeal the plaintiff had filed an application below Exhibit-12 seeking appointment of the Commissioner for measuring the land in question. This application was rejected by the Appellate Court principally on the ground that the earlier measurement was stated to have been carried out by the Commissioner which was factually incorrect. Placing reliance on the judgment in Vijay s/o Shrawan Shende and ors. Vs. State of Maharashtra and ors. , (2009) 5 MahLJ 279 it was submitted that if the measurement is not found to be properly carried out, a case is made out for directing remeasurement. 7. Shri R. T. Anthony, learned counsel for the respondents supported the impugned judgment. According to him the defendants could not be blamed for the incorrect manner in which the Surveyor had carried out the measurement. He submitted that the measurement relied upon at Exhibit53 did not disclose any encroachment. 7. Shri R. T. Anthony, learned counsel for the respondents supported the impugned judgment. According to him the defendants could not be blamed for the incorrect manner in which the Surveyor had carried out the measurement. He submitted that the measurement relied upon at Exhibit53 did not disclose any encroachment. He referred to the various admissions of the plaintiff to urge that the boundaries of the plaintiff''s field were intact which indicated absence of any encroachment by the defendants. He submitted that it was not permissible to appoint a Commissioner for the purposes of re-measurement of the plaintiff''s land when no grievance is made with regard to the earlier measurement. In support of his submission the learned counsel placed reliance on the decisions in Shaikh Isak s/o Shaikh Amir vs. State of Maharashtra and anr. , (2011) 3 MahLJ 185 and Chandrarao s/o Hanumantrao Wable vs. Dhondu s/o Fula Patil , (2012) 2 MahLJ 847. 8. I have heard the learned counsel for the parties and I have also perused the records of the case. The plaintiff got measured Survey Nos.22 and 25 by applying to the Surveyor. The Surveyor before carrying out the measurement issued notices to the plaintiff and the adjoining field owners. There is no clear evidence as to whether such notice was issued to the defendants and whether they were present when the said measurement was undertaken. The evidence of the Surveyor further indicates that the encroached portion has been shown in a different colour which has been objected by the defendants. The Appellate Court has found that the prescribed procedure while carrying out this measurement has not been followed by the Surveyor. In other words though the plaintiff attempted to place on record the measurement of her field, the manner in which this measurement was carried out has not been found to be proper. In the aforesaid backdrop I find that the decision in Vijay Shrawan Shende and the course prescribed therein deserves to be followed. The suit is for possession of the alleged encroached portion. The plaintiff did attempt to have her field measured but this measurement has not been done satisfactorily. By directing fresh measurement I do not find that the plaintiff would be filling up any lacuna. The fresh measurement is only for the purposes of determining the question with regard to existence of encroachment. 9. The plaintiff did attempt to have her field measured but this measurement has not been done satisfactorily. By directing fresh measurement I do not find that the plaintiff would be filling up any lacuna. The fresh measurement is only for the purposes of determining the question with regard to existence of encroachment. 9. As regards challenge to the earlier measurement is concerned, the fact that the same has not been properly carried out itself is a ground to discard the same. Moreover, the Appellate Court while deciding the application below Exhibit-12 has proceeded on the basis that the earlier measurement was carried out by the Court Commissioner which aspect is factually incorrect. The earlier measurement was got done by the plaintiff prior to filing of the suit. This is one more reason to direct fresh measurement of the disputed land. The contention of the defendants based on the admissions of the plaintiff can be taken into consideration by the Court after the fresh measurement is carried out. The decisions relied upon by the learned counsel for the respondents are clearly distinguishable in view of the aforesaid facts. 10. In that view of the matter, the substantial questions of law are answered by holding that the Appellate Court ought to have directed measurement of the lands in question by appointing a Court Commissioner. In view of aforesaid the following order is passed : (i) The judgment of the trial Court in R.C.S.No.2/2004 as well as judgment of the Appellate Court in R.C.A. No.22/2010 are quashed and set aside. The proceedings are remitted to the trial Court which shall appoint a Surveyor at the expense of the plaintiff for carrying out fresh measurement in the light of law laid down in Vijay Shrawan Shende . The Surveyor shall measure Survey Nos.22 and 25 as well as the portion in occupation of the defendants. After this measurement is brought on record and the Surveyor is examined, the suit shall be decided on its own merits and in accordance with law. (ii) The parties shall appear before the trial Court on 19/03/2018. (iii) The record and proceedings be sent to the trial Court forthwith. (iv) It is clarified that this Court has not expressed any opinion on the other evidence on record. The Second Appeal is partly allowed in aforesaid terms with no order as to costs.