JUDGMENT : VIBHA KANKANWADI, J. 1. Present appeal has been filed by the original plaintiff challenging the concurrent Judgment and decree passed in Regular Civil Appeal No.05 of 2009 by learned District Judge -1, Amalner, dated 26-10-2015, thereby dismissing her appeal and confirming the dismissal of her suit for removal of encroachment and possession bearing Special Civil Suit No.47 of 2007 by learned Civil Judge, Senior Division, Amalner, dated 22-01-2009. 2. The present appellant - original plaintiff had come with a case that, she is the owner of Gut No.65/2B/1 admeasuring 1 H 52 R situated at village Sarbete Bk. Tq. Amalner Dist. Jalgaon which has been more particularly described in para No.1 of the plaint. Defendant is the owner of southern part of the land in the same gut number, it is then numbered as Gut No.65/1 admeasuring 59 R out of area admeausring 1 H 80 R land. It was more particularly described in para No.2 of the plaint. Plaintiff had purchased the said land from one Devidas Kalu Vanjari, Sanjay Kalu Vanjari and Chababai Kalu Vanjari by registered sale deed dated 30-04-2007. Since the date of purchase, plaintiff possesses the land and enjoys it as owner thereof. It is stated that, there is a common bandh in between the two lands of plaintiff and defendant. It is stated that, the defendant illegally encroached upon the suit land somewhere in the month of May 2004 by demolishing East-West common bandh. According to her the encroachment is to the extent of 19 R. She had applied for measurement on 04-05-2007, accordingly the Cadastral Surveyor had measured it in June 2007. Thereafter, she had requested the defendant to hand over the encroached portion, however the defendant refused, and therefore, the suit has been filed for possession as well as damages to the extent of Rs.1,00,000/-. 3. The defendant has filed his written statement and denied the allegations regarding encroachment. It is his say that, original land Gut No.65 was owned by one Mahitap Khadku Vanjari and Isarsing Khadku. It was admeasuring 7 H 63 R + 1 H 83 R as Pot Kharab (non-cultivable area). Kalu Vanjari purchased Southern portion of the land admeasuring 2 H 42 R and then Mahitap, Isarsing and Kalu had divided the said Gut No.65 as per their convenience. It was admeasuring 7 H 63 R + 1 H 83 R as Pot Kharab (non-cultivable area). Kalu Vanjari purchased Southern portion of the land admeasuring 2 H 42 R and then Mahitap, Isarsing and Kalu had divided the said Gut No.65 as per their convenience. North portion Gut No.65/1 admeausring 1 H 80 R went to Mahitap, North portion Gut No.65/2 A admeasuring 3 H 41 R + 1 H 83 R went to Isarsing Khadku Vanjari and Gut No.65/2 B admeasuring 2 H 42 R went to Kalu Kaniram Vanjari, accordingly the mutation had taken place. He had purchased in all area admeasuring 1 H 4 R from Gut No.65/2 A and part of 65/1 from Mahitap and Isarsing by a registered sale deed dated 13-04-1992. He is possessing the said portion as owner thereof since 1992. According to him 45 R land out of the said land Gut No.65/2 A was merged in land Gut No.65/1 without making any sub division, and therefore, plaintiff has misconception that the defendant is possessing excess land. According to him 1 H 21 R land running East-West is still belonging to Wakhabai Khimraj,60 R land belongs to one Luka Pita and 30 R land belongs to Vithal Kalu. Further 1 H 80 R belongs to one Mandabai Vasraj and 45 R belongs to one Nirmalabai Punamchand. 1 H 64 R land belongs to one Sahebrao Uttam Mistri. It is contended that, no measurement had taken place on the request of the plaintiff showing that he has made encroachment over the land belonging to the plaintiff. 4. Taking into consideration the rival contentions, issues came to be framed. Both the parties have led oral as well as documentary evidence. Taking into consideration the evidence on record, the learned trial Court had dismissed the suit. The said Judgment and decree was challenged by the plaintiff before First Appellate Court. After hearing both sides, even the First Appellate Court has dismissed the appeal. Hence, this second appeal has been filed. 5. Heard learned advocate Mr. V. B. Patil for appellant - original plaintiff and learned advocate Mr. G. S. Rane for respondent. The said Judgment and decree was challenged by the plaintiff before First Appellate Court. After hearing both sides, even the First Appellate Court has dismissed the appeal. Hence, this second appeal has been filed. 5. Heard learned advocate Mr. V. B. Patil for appellant - original plaintiff and learned advocate Mr. G. S. Rane for respondent. It has been vehemently submitted on behalf of the appellant that, there is no dispute that the plaintiff had the burden on her shoulders to prove that, defendant has committed encroachment to the extent of 19 R and in order to prove the same, the evidence that was brought on record showed that, land was measured before plaintiff had purchased the land, and thereafter, by plaintiff just prior to filing of the suit. That means, there were two measurements showing same result of encroachment to the extent of 19 R. Both the Courts had come to the conclusion that, the measurement was not carried out as per the rules on both the occassions. Under such circumstance, when it was the duty of the Court also, to see that an admitted map is produced on record, either the Trial Court or even the Appellate Court ought to have appointed the Cadastral Surveyor as Court Commissioner. If the admitted map would have been brought on record, it would have revealed the encroachment made by the defendant. He prayed for admission of the second appeal stating that, substantial question of law is arising in this case, however alternatively he also submitted that, if this Court comes to the conclusion that the matter deserves remand on account of proper measurement, then the matter be sent back for carry out measurement and adducing evidence to that extent. 6. Per contra, the learned advocate appearing for respondent submitted that, when this Court is required to see that, there are only substantial questions of law arising in this case for taking cognizance of the second appeal then question of remand will not arise. The burden was on the plaintiff to prove that, defendant has made encroachment to the extent of 19 R land. The evidence was adduced, however both the Courts have rightly held that, the evidence that has been adduced on record is not sufficient to prove her contention. Now at this second appeal stage, the appellant cannot fill up the lacunae. 7. The evidence was adduced, however both the Courts have rightly held that, the evidence that has been adduced on record is not sufficient to prove her contention. Now at this second appeal stage, the appellant cannot fill up the lacunae. 7. At the outset, it is required to be seen as to whether any substantial question of law is arising or not in order to take cognizance of the matter and further instead of admitting the appeal and waiting for years to come to dispose of the same, it can be seen that, as to whether both the Courts erred in exercising their jurisdiction to get the Cadastral Surveyor appointed as Court Commissioner and obtaining a report. Therefore, following points arise for determination, findings and reasons for the same are as follows ; (i) Whether substantial questions of law are arising in this appeal ? (ii) Whether the matter deserves remand ? 8. Plaintiff has come with a specific case that, she has purchased 1 H 80 R land from three persons i.e. Devidas, Sanjay and Chababai on 30-04-2007. It is her case that defendants have encroached on her land to the extent of 19 R. She contends that just prior to the institution of the suit she had got the measurement of the property done. In order to prove the said document i.e. the report of the said Cadastral Surveyor, she has examined him. No doubt there is evidence on record that, even the predecessor of the plaintiff had got the lands measured in the year 2004. In order to prove the said report P.W.2 Ravindra Shantaram Kadam has been examined. Further as regards other measurement carried out on the request of plaintiff, P.W.3 Anil Kashinath has been examined. Both the Surveyors have not produced on record concrete document showing that, they had issued prior notice to the defendant to remain present at the time of measurement. That means, there was no admitted map produced on record. It will not be out of place to mention here that, the defendant is not challenging the ownership of the plaintiff over the suit land, however he is disputing the area which he stated to be actual in possession of the plaintiff. Except his own witness defendant has not examined any person to support his contention. It will not be out of place to mention here that, the defendant is not challenging the ownership of the plaintiff over the suit land, however he is disputing the area which he stated to be actual in possession of the plaintiff. Except his own witness defendant has not examined any person to support his contention. His contention that original Gut No. 65 was then sub-divided and there was merger of part of the land from one sub-division in another is not proved properly. The testimony of both the Cadastral Surveyors has been excluded or not considered by the learned trial Court on the ground that the notice was not properly issued to the defendant regarding measurement. It also appears from the record that, though there was a sub division of original Gut No.65, all the sub divisions have not been measured. In order to come to conclusion that, a party has made encroachment, definitely law requires that an admitted map should be produced on record. 9. In Kashinath Ramkrishna Chopade vs. Purushottam Rulshiram Tekade & ors, (2005) 6 BCR 267, wherein it is observed that, "It is clear that under Order XXVI Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local inspection or not. The object of the local inspection is not so much to collect evidence which can be taken in Court, but to obtain evidence which from its peculiar nature can only be had on the spot. The cases of boundary disputes and disputes about the identify of lands are instances when a Court should order a local investigation under Order XXVI Rule 9 of CPC. In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon". The said decision is later on followed in, Kolhapuri Bandu Lakade vs. Yallappa Chinappa Lakade, deceased, through Pooja @ Poojari Y. Lakade & ors., (2011) 3 BCR 807. 10. Reliance can be placed on the observations in Sulemankhan and ors. vs. Bhagirathibai and ors., (2014) 4 MhLJ 250 , wherein it is stated that, "This Court has time and again expressed opinion about the necessity of duly drawn measurement plan/map in any suit, in which there is a boundary dispute. 10. Reliance can be placed on the observations in Sulemankhan and ors. vs. Bhagirathibai and ors., (2014) 4 MhLJ 250 , wherein it is stated that, "This Court has time and again expressed opinion about the necessity of duly drawn measurement plan/map in any suit, in which there is a boundary dispute. The Trial Court as well as First Appellate Court, which are Court of facts, are duty bound to ascertain that a map is drawn to the appropriate scale by competent Government official from the office of TILR or DILR, as the case may be, so that measurement of suit property is carried out in presence of the parties after due notice to them or even if they are absent, so as to ensure that the suit property is properly measured, boundaries are fixed and boundary dispute is finally settled by producing map in the Court by the plan maker who can prove its genuineness by deposing in support of such plan/map, if it is so necessary in the absence of admission for exhibiting the map". Following paragraph in Sulemankhan's (Supra) Judgment is important ; "8. In cases to determine encroachment, it is always desirable to have disputed suit property measured by competent surveyor to find out encroachment and its extent. Oral evidence cannot prove such contentious issue conclusively. In a suit where parties are disputing boundaries of property and one of the parties alleges encroachment made by another party to the suit inside suit property. In such case the plaint map as evidence in respect thereof is vital document for to decide real controversy between the parties finally. This Court has time and again expressed opinion about the necessity of duly drawn measurement plan/map in any suit in which there is a boundary dispute. In such case the plaint map as evidence in respect thereof is vital document for to decide real controversy between the parties finally. This Court has time and again expressed opinion about the necessity of duly drawn measurement plan/map in any suit in which there is a boundary dispute. The Trial Court as well as 1 st Appellate Court which are Court of Facts, are duty bound to ascertain that a map is drawn to the appropriate scale by competent Government official from the office of TILR or DILR, as the case may be, so that measurement of suit property is carried out in presence of the parties after due notice to them or even if they are absent, so as to ensure that the suit property is properly measured, boundaries are fixed and boundary dispute is finally settled by producing map in the Court by the plan maker who can prove its genuineness by deposing in support of such plan/map, if it is so necessary in the absence of admission for exhibiting the map. The Trial Court can certainly raise presumption of accuracy and genuineness of such map in view of Section 83 of the Evidence Act if map is drawn by competent authority. (See : Ram Kishor Sen & ors v. Union of India & ors, (1966) AIR SC 644 : MANU/SC/0052/1965) Where such vital document is duly produced, proved and established, necessary detailed decree can be follow if there is any encroachment on the suit property. As held by this Court in Vijay Shende's case (supra), in such cases, fact of encroachment may be proved partly by oral evidence although the extent of encroachment cannot be proved in absence of public records without following due procedure emerging from Section 36 and Section 60 of the Evidence Act. In view of this recent judicial precedent referred to above, in the larger interest of justice, when it appears that the trial Court as well as 1st Appellate Court failed to follow proper procedure in this regard to ascertain the boundaries of the suit property." 11. Taking into consideration the said legal requirement, both the Courts below ought to have made efforts to have admitted map on record. Taking into consideration the said legal requirement, both the Courts below ought to have made efforts to have admitted map on record. When it was pointed out that, notice was not served on the defendant or the evidence was showing that he had refused to accept the notice, but then was admittedly not present when the measurement took place, the best course could have been adopted by both the Courts below was to appoint an expert under Order 26 Rule 9 of Code of Civil Procedure. If the powers are not used by both the Courts then there is no point in considering as to which party has not proved what. The learned Trial Court has quoted paragraphs from Manual of Land Survey and yet did not make any effort to have an admitted map which can be brought on record by having measurement as contemplated under the Law. It is not only the job of parties to the proceeding to adduce cogent evidence, but certain powers have been vested in Courts for rendering justice. 12. No doubt the plaintiff had come with a case that, even at the time of measurement carried out at the instance of her predecessor, the encroachment was noted and then she went on to purchase the property, and the recitals in the sale deed show that, she has received possession yet both the Courts ought to have considered that, there was no joint measurement of the properties adjoining the disputed area, the map was not produced, and the adjacent lands have not been measured. Under such circumstance, both the Courts ought to have seen that, such evidence could not have helped them to come to a certain conclusion. There could not have been a proper adjudication of the dispute, and therefore, there was necessity in this case to have Court Commissioner appointed and get the admitted map on record through the said expert Cadastral Surveyor. Since both the Courts have failed to exercise their powers, definitely substantial question of law is arising in this case. When need is felt to have the lands measured and necessity to give such directions, this Court need not frame those substantial questions and then answer the same at this stage. The only fact that, substantial questions of law are arising in this case are sufficient to take cognizance of the second appeal. 13. When need is felt to have the lands measured and necessity to give such directions, this Court need not frame those substantial questions and then answer the same at this stage. The only fact that, substantial questions of law are arising in this case are sufficient to take cognizance of the second appeal. 13. In fact, the impugned Judgments and Decree passed by the Courts below have resulted into miscarriage of justice and in such circumstances, there is no alternative except to remand this suit to the Trial Court with directions to appoint the Commissioner/Surveyor from the office of District Inspector of Land Records, Jalgaon or any such officer nominated by him for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure. Hence following order. ORDER (1) The appeal is partly allowed. (2) The Judgments and decrees passed by the Courts below are set aside and the suit is remanded to the Trial Court for fresh decision in accordance with law and in the light of the observations made hereinafter. (3) The Trial Court is directed to appoint the Surveyor from the office of District Inspector of Land Records, Jalgaon or any Taluka Inspector of Land Records having jurisdiction over the village in which suit land is situated, for the purpose of local investigation under Order 26, Rule 9 of the Code of Civil Procedure. (4) Parties are directed to remain present before the Trial Court on 01.10.2019. If, parties fail to appear on that day, Trial Court should issue notice and secure the presence of parties by serving notice on them. (5) The plaintiff is directed to submit her application before the Trial Court within two weeks from the date of appearance of both the parties for appointment of Court Commissioner. If, parties fail to appear on that day, Trial Court should issue notice and secure the presence of parties by serving notice on them. (5) The plaintiff is directed to submit her application before the Trial Court within two weeks from the date of appearance of both the parties for appointment of Court Commissioner. (6) Such appointed Commissioner shall conduct local investigation in accordance with the provision of Order 26, Rule 9 of the Code of Civil Procedure, after giving due notice to the parties and take the measurements of the property owned by the parties after taking into consideration the title deeds of the parties, if any, and shall also demarcate the boundaries of the property by noting down the actual measurements in the joint measurement map itself, by showing the precise and concise area under encroachment, if any, and then shall submit the map and report to the trial Court, within a period of two (02) months thereafter. (7) The Trial Court shall decide the matter expeditiously and preferably within six (06) months from the receipt of report of the Court Commissioner. (8) The record and proceedings be sent immediately to the trial Court. (9) If the plaintiff does not submit his application for appointment of the Commissioner within aforesaid period, the suit shall stand dismissed. (10) Parties to act upon an authenticated copy of this order.