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. (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 setting aside the order of enhancement of compensation passed by the District Court under Section 18 of Land Acquisition Act. Hon'ble Supreme Court set aside the order and laid down certain guidelines in which cases there can be an order of remand. There is a cautioned to pass remand order in a light manner. If the award is only unintelligible, the remand order can be justified. Hon'ble Supreme Court set aside the order and laid down certain guidelines in which cases there can be an order of remand. There is a cautioned to pass remand order in a light manner. If the award is only unintelligible, the remand order can be justified. If there is total lack of evidence, remand is justified. (2) P. Purushottam Reddy and Another vs. M/s. Pratap Steels Limited, AIR 2002 SC 771 . In a partition suit, there is a dispute as to whether the plaintiff was begotten from the lawful marriage or not. Instead of opining on the issue of marriage, the matter was remanded. Long standing cohabitation was considered as one of the factor for remand. The remand order was set aside. I think the observations are on the basis of facts therein. (3) Bhagwan Sahai Todwal vs. State of Rajasthan and Others, (2010) 15 SCC 749. The employees were held surplus and their services were dispensed with. The writ petition was dismissed. New writ petition was also dismissed. When the matter went to the Hon'ble Supreme Court, there was a prayer to remand the matter. It was turned down, because already first writ petition was dismissed and the petitioners cannot be permitted to take additional grounds. 8. In case of P. Purshottam Reddy and Another vs. M/s. Pratap Steels Ltd. AIR 2002 SC 771 . Hon'ble Apex Court discussed the law in detail on the point of the remand orders passed prior to 1976 amendment and the scope of remand after 1976 amendment. After 1976 amendment, if the suit has been decided on merits (otherwise than on preliminary points), the suit can be remanded only when twin conditions are satisfied. Decree reversed in appeal and there is necessity of re-trial are the twin conditions. There was a suit for specific performance. It was decreed. It was set aside by the High Court and re-trial was considered necessary after framing three additional issues. When there was no pleading that the suit is not maintainable, there was no need for High Court to frame additional issues on that point. The High Court felt it necessary to frame a issue on the point of readiness and willingness and this was done inspite of the fact that the pleadings were there and parties has adduced evidence on that aspect. It was disapproved by Hon'ble Supreme Court (Para 11). PROVISIONS OF LAW 9. The High Court felt it necessary to frame a issue on the point of readiness and willingness and this was done inspite of the fact that the pleadings were there and parties has adduced evidence on that aspect. It was disapproved by Hon'ble Supreme Court (Para 11). PROVISIONS OF LAW 9. After taking overview of above observations and the provisions of law, one can find that Appellate Court has got wide powers ranging from decreeing/dismissing the suit, remanding the matter, framing additional issues, directing the trial Court to record additional evidence etc. Apart from specific provisions incorporated in Rules 23, 23-A, 24 to 27, Rule 33 of Order 41 empowers the Court to pass any order which ought to have been made. When there is contingency of remanding the suit, the Court has to take recourse to either Rule 23 or Rule 23-A of Code of Civil Procedure. If the Appellate Court has to remand the suit decided on merits (not on preliminary points), the Court has to satisfy the ingredients laid down in Rule 23-A of the Code. 10. The Court has to reverse the decree first and the suit can be remanded only when re-trial is considered necessary. The endeavour of the Court should be to decide the lis as early as possible. The endeavour of the First Appellate Court should be to assess the evidence, the findings given by the trial Court and to ascertain its correctness and either to confirm/reverse/come to a different conclusion. The stage for remanding the matter will come only after the initial job of assessing the evidence is over. That is not sufficient. 11. After assessing the evidence, if Court feels that parties needs to be given an opportunity or the trial Court has not assessed a particular piece of evidence, then only remand order can be passed. Rule 23-A does not lays down any criteria (except the criteria of necessity of re-trial) wherein suit can be remanded. So the legislatures have kept it open to the discretion of the Court for passing remand order. It depends upon facts. When there is un-circumscribed discretion, there is more responsibility to exercise it judiciously. On this background, I have perused the reasoning of the First Appellate Court. REASONS FOR REMAND 12. While framing the points, the First Appellate Court has framed only limited points as compared the issues framed by the Trial Court. It depends upon facts. When there is un-circumscribed discretion, there is more responsibility to exercise it judiciously. On this background, I have perused the reasoning of the First Appellate Court. REASONS FOR REMAND 12. While framing the points, the First Appellate Court has framed only limited points as compared the issues framed by the Trial Court. As if the First Appellate Court has decided to remand the matter. Mainly two parameters were considered prior to passing remand order. There is inadequate evidence on the point of exact area owned by the plaintiff and there is to lack of evidence on the point of consolidation proceeding. Secondly, the evidence on the point of measurement was found inadequate and the measurement was for limited area of the land. There was no decision on amendment application. AMENDMENT APPLICATION OF THE PLAINTIFF 13. My attention is also brought on behalf of Shri Deshpande to the amendment application filed by the plaintiff on 25-11-2014 before the first appellate Court. The plaintiff has sought permission to incorporate the details about “the distribution made at the time of consolidation and increase in the area of land.” According to plaintiff it was necessary for explaining as to how he became the owner of the area of the land shown on 7/12 extract. The plaintiff is justifying this amendment for two reasons. One is, there should not be any lacuna in the case of the plaintiff and second is it is only of explanatory in nature. The learned Advocate Shri Bhide relied upon the following judgments: (i) Sqn. Ldr. Gurdial Singh (Retd.) vs. Gurdev Singh and Others, AIR 1991 P&H 240 . (ii) Olga Rodrigues and Others vs. Christopher Pinto and Others, 2017 (4) Bom. C.R. 755. 14. Learned Advocate Shri Deshpande commented on applicability of the ratios laid down in above said judgments. According to him, Gurdial Singh's judgment was delivered earlier to the amendment brought in the provisions of Order 6 Rule 17 of the Code whereas the judgment in Olga Rodrigues case was delivered when the matter was pending before the trial Court. RATIOS 15. If the plaintiff wants to carry out the amendment on the basis of the evidence adduced on the additional issue framed by the first appellate Court, it was allowed in Gurdial Singh's case. RATIOS 15. If the plaintiff wants to carry out the amendment on the basis of the evidence adduced on the additional issue framed by the first appellate Court, it was allowed in Gurdial Singh's case. The amendment was justified because it pertains to facts which are already on record and no prejudice was presumed to have been caused to the defendants. Whereas, in Olga Rodrigue's case the Court applied the test of determining real question in controversy prior to allowing the amendment. LAW 16. If we read the provisions of Rule 17, we can find that it is in two parts first part is directory whereas second part is mandatory and it applies when the amendment is necessary for determining the real questions in controversies. However, there is a proviso to this Rule. There is embargo on allowing the amendment after commencement of the trial. There is also exception to said embargo if there is justifiable reason for not raising the issue before the commencement of the trial due to due diligence still Court can allow the amendment and even after commencement of the trial. FINDINGS OF THE FIRST APPELLATE COURT 17. The first appellate Court [after holding that “evidence on the point of area shown on 7/12 extract is inadequate and there are defects in the measurements already carried out when measurement is required] had come to conclusion that there is no need to decide the amendment application. That find place in para-23 of the judgment. After ordering for fresh measurement and that too of the area comprised in old survey no. 22, the first appellate Court though it fit to grant liberty to parties to amend the pleadings on the basis of the report of the Commissioner.” 18. After reading this reasoning, one can find that the first appellate Court has not opined independently on the necessity of the amendment application but has decided to connect it to the outcome of the report of the Commissioner. The fate of this amendment application before this Court will depend upon the outcome of the findings given by this Court. EVIDENCE ON THE POINT OF AREA OF THE SUIT LAND 19. First Appellate Court in para-20 of the judgment observed thus:- “20. The fate of this amendment application before this Court will depend upon the outcome of the findings given by this Court. EVIDENCE ON THE POINT OF AREA OF THE SUIT LAND 19. First Appellate Court in para-20 of the judgment observed thus:- “20. It is clear from the evidence and admission given by he defendant and his witness Kisan that actual area of S. No. 22 is in dispute and nobody knows correct area of S. No. 22. It is also evident that plaintiff and defendant are shown owners of more area than area purchased by them. Defendant is also unable to say that when he had purchased only 82R land (2H 2R) how 99R land is recorded in his name in 7/12 extract. In the same way, Bhagu owner of G. No. 50 and Sukhdeo owner of G. No. 51 had jointly purchased 7 acre 9 gunthas in equal share but in 7/12 extract, area of G. No. 50 is shown 1H 84R and area of G. No. 51 is shown 2H 71R. Thus, area shown in 7/12 extract is apparently incorrect than the area purchased by plaintiff, defendant and other purchasers of S. No. 22.” 20. Prior to coming to this conclusion, the Appellate Court has considered some of the admissions given by defendant during cross-examination. It pertains to “99 R land shown on his 7/12 extract whereas he has purchased only 82 R.” He further gave admission that “total area of survey no. 22 was 16 Acres 37 Guntas whereas the owner Bapu Patil in the 1948 sale-deed has mentioned the area as 14 Acres 17 Gunthas for Survey No. 22.” 21. Learned Advocate Shri Deshpande criticised the approach of the First Appellate Court in picking up certain admissions in the cross-examination and neglecting other answers. He brought to my notice answer given by the defendant during cross-examination. It was suggested to him that two and half acres of land not shown in the sale-deed was distributed during consolidation and he denied it. 22. This is the peculiar case wherein the defendant has taken on himself the responsibility of explaining the area coming to the share of the plaintiff in excess of the area purchased by him. It was suggested to him that two and half acres of land not shown in the sale-deed was distributed during consolidation and he denied it. 22. This is the peculiar case wherein the defendant has taken on himself the responsibility of explaining the area coming to the share of the plaintiff in excess of the area purchased by him. He has stated in his evidence about the details of the land as follows:- (a) Total area sold by Bapu Mahadeo Patil as 14 acres 17 gunthas, vide common sale-deed dated 12.05.1948. (b) He had given the area purchased by the purchasers as follows:- (i) Plaintiff Shamrao - 4 Acres 4 Gunthas. (ii) Kisan Laxman - 1 Acres 2 Gunthas (iii) Pandhari Sampath - 2 Acres 2 Gunthas (iv) Bhagu Govinda - 7 Acres 8 Gunthas. Sukhdeo Gonvida (c) Subsequently, the plaintiff purchased 1 Acres 2 Gunthas from Kisan Laxman. So the area of the plaintiff is as follows:- 4 Acres 4 Gunthas + 1 Acres 2 Gunthas = 5 Acres 6 Gunthas (Originally purchased) (Subsequently purchased) (d) Total area of the land shown in the 7/12 extract is 2 Hector 73 R. The plaintiff is trying to usurp 1 Acres 24 Gunthas of land (i.e. which is over and above land admeasuring 5 Acres 6 Gunthas). (e) While carrying out consolidation, the area not shown in the sale-deed is wrongly recorded and that needs to be corrected. (f) Due to consolidation area of 1 Acres 24 Gunthas was increased belonging to the share of plaintiff whereas the area of 17 Gunthas belonging to defendant was increased. On the other hand the area belonging to the share of Bhagu Govinda and Sukhdeo Govinda was reduced. INFERENCE 23. No doubt it is true that the plaintiff has neither pleaded nor deposed as to how he become owner of the land admeasuring 2 Hectors 73 R. The above details of the land deposed by the defendant are also pleaded in his written statement. The plaintiff was fully aware about the same. In other words, the defendant on one hand has assisted the plaintiff in explaining as to how he become the owner of the land shown on the 7/12 extract. But he does not want to help the plaintiff fully. He further deposes that it has been wrongly done. TRIAL COURT FINDINGS 24. The increase in the share had occurred during consolidation. But he does not want to help the plaintiff fully. He further deposes that it has been wrongly done. TRIAL COURT FINDINGS 24. The increase in the share had occurred during consolidation. The trial Court has also framed certain issues pertaining to “proof by defendant as to whether area shown during Consolidation belonging to plaintiff wrongly.” Trial Court has given a positive findings in favour of the defendant. While giving that finding the trial Court has considered one statement prepared as per Section 9 of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act. SUBMISSIONS 25. Learned Advocate Shri Bhide tried to argue that the entries made during consolidation, they are final and they are not opened for any scrutiny. He brought to my notice the Scheme. Prior to enacting this legislation and what is the purpose of enacting it and its effects. He also relied upon a judgment in case of Mrs. Geetabai W/o Mahagulal Panchbudhe and Another vs. Kailash Prakashchandra Makkad, 2019 (4) All MR 269. 26. This Court directed to refer the issue as to “effect of provisions of the Act on the sale deed to the competent authority.” The provisions of Section 36A and Section 36B were referred. In that case there was an application on behalf of defendants to make reference. It was a suit for permanent injunction and possession. 27. Whereas according to learned Advocate Shri Deshpande the issue of competency of Civil Court was not agitated before the trial Court. Learned Advocate Shri Bhide invited my attention to ground No. 7 from memo of appeal. With their assistance, I have read it. The plaintiff has challenged the findings of the trial Court to the effect “entries in the revenue record are not documents of title.” When the Civil Court is barred from challenging the entry made by the Consolidation Officer, on these background said findings are incorrect. The defendant wants to suggest that the entries made on 7/12 extracts on the basis of consolidation needs to be recognized and normal principle of evidentiary value of 7/12 extract does not apply. 28. If above discussion is considered can we say that the first appellate Court has decided the controverted issues properly? The defendant wants to suggest that the entries made on 7/12 extracts on the basis of consolidation needs to be recognized and normal principle of evidentiary value of 7/12 extract does not apply. 28. If above discussion is considered can we say that the first appellate Court has decided the controverted issues properly? The first appellate Court had only picked up certain admissions given by defendant, by defendant's witness Kisan and excess area shown on 7/12 extract (as compared to the area from the Sale Deed) and had chosen to remand the matter. Where is the finding of the first appellate Court that the findings given by the trial Court is erroneous? 29. I feel that the first appellate Court has abdicated its responsibility. It was the responsibility to give the findings after assessing the entire evidence. The first appellate Court had selected some portion of the oral and documentary evidence whereas omitted to consider rest of them. It has only considered the evidence which is favouring the plaintiff/respondent. That is why I do not subscribe to the approach of the first appellate Court. MEASUREMENT OF THE LAND 30. There is evidence of representative Shri Wankhede from T.I.L.R. from the side of the plaintiff. He had measured land bearing Gat No. 48 belonging to the plaintiff. Whereas, there is evidence of Mushriff Khan from the side of defendant. He had also measured the land bearing Gat No. 49 (belonging to the defendant). The first appellate Court on one hand pointed out admission given by defendant about his encroachment in a cross examination whereas on the other hand pointed out the lacunae in the measurement carried out by two surveyors. While justifying its decision to order for measurement of the entire land, it relied upon two judgments one in case of Vasant Prabhu vs. Xalinibai Borcar, 2014 (5) Mh. L.J. 382 and Atmaram Jagrut vs. Rajaram, 2014 (3) Mh. L.J. 463. JUDGMENTS 31. In both these judgments the order of the first appellate Court to measure the land has been upheld. There was a dispute about the survey numbers and boundaries of the suit property in one case whereas in another case no agreed map was thereon record. There is no doubt also true that in Atmaram Jagrut's case, there was no evidence of TILR before the trial Court. There was a dispute about the survey numbers and boundaries of the suit property in one case whereas in another case no agreed map was thereon record. There is no doubt also true that in Atmaram Jagrut's case, there was no evidence of TILR before the trial Court. Whereas in case of Vasant Prabhu even there was no evidence of the surveyor before the trial Court. The appointment of the Commissioner was made by the first appellate Court when the issue was framed whether to appoint an expert is required to identify the suit property. APPLICABILITY OF RATIO 32. Unless and until you consider the facts of the judgments cited before you, it will not be correct to apply mechanically the ratio to the facts before us. In this front also I feel that the first appellate Court has abdicated his responsibility to decide the contentious issue before it on the basis of the available evidence. The approach of pointing out certain lacunae and then ordering for fresh measurement is not judicial approach. 33. I think the first appellate Court ought to have decided the contentious issues on the basis of the evidence available before the trial Court and ought to have given its findings. MEASUREMENT OF THE ENTIRE LAND OF SURVEY NO. 22 34. Under the guise of doing complete justice, will it be proper to order measurement of entire old Survey No. 22 (which forms Gat Nos. 48 to 51)? Will it be proper to direct trial Court to apportion the excess area found after the measurement? Will it also be proper to include other sharers of S. No. 22 (including plaintiff and defendant) while distributing the excess area of land? The answer to all these questions must be in the negative. The purpose for giving these directions is certainly pious. But you need to exercise the discretion within the parameters of the law. 35. One fact is clear that other sharers of S. No. 22 are not the party to the litigation. One does not know what will be outcome of the measurement and what will be the reaction. The issue before the first appellate Court was about encroachment by the defendant over the plaintiffs land. The first appellate Court ought to have restricted himself by considering the parties before him. One does not know what will be outcome of the measurement and what will be the reaction. The issue before the first appellate Court was about encroachment by the defendant over the plaintiffs land. The first appellate Court ought to have restricted himself by considering the parties before him. Can we justify the order of the first appellate Court in apportioning the excess area of land. That was never the issue before the trial Court. It had certainly transgressed its powers. FINAL CONCLUSION 36. For the above discussion, the order of remand cannot be sustained for any reason. It needs to be set aside. So too the order of appointment of the Commissioner and consequent order thereto. So I am inclined to remand the matter to the first appellate Court for fresh decision on the basis of the available evidence. Hence, I answer the issue framed in the negative. 37. The order of remand cannot withstand the parameters laid down in Order 41 Rule 23-A of the Code. Rule 25 will be applicable only when certain issue is framed and relegated for the decision of the trial Court and then the appeal will decided. This is not the case herein. 38. I have not answered specifically the issues suggested in ground no. xiii to ground no. xvii in the memo of appeal. The reason is I have given the findings on them otherwise. Still the question will remain what is to be done about the amendment application. I think this Court can decide on the basis of the available materials. FINDINGS ON AMENDMENT APPLICATION 39. This Court is not inclined to grant the amendment application for two reasons. One is it has been filed belatedly. The word belated insufficient to explain the total lack of casualness on the part of the plaintiff. Can you say that the plaintiff is not aware about what has been pleaded by the defendant in the written statement pertaining to distribution of excess land during consolidation. 40. The plaintiff is the creator of the Court proceeding that is to say he had come with a grievance of encroachment. Total inaction and to keep quiet for almost 7 years disentitles the plaintiff to pray for amendment in the plaint. Secondly, plaintiff cannot justify his act of belated filing the application under the garb of explaining the facts (and not introducing new facts). Total inaction and to keep quiet for almost 7 years disentitles the plaintiff to pray for amendment in the plaint. Secondly, plaintiff cannot justify his act of belated filing the application under the garb of explaining the facts (and not introducing new facts). It is for the reason that these facts are already pleaded by the defendant and also deposed too. The amendment cannot be considered to be an act of simply amending the plaint. It involves the necessity of filing amended written statement. It further involves the eventuality of giving further evidence. This cannot be allowed at an appellate stage and the ratios laid down in both the judgments relied upon by the plaintiff will not help him for the reason that the facts of those cases are different. In Gurdial Singh's case, evidence was adduced by the parties before the trial Court on issue framed additionally by the first appellate Court and then the amendment was sought to incorporate those details. This is not the case herein. The plaintiff has nowhere stated that he do not want to adduce evidence if the amendment is allowed. The question of asking the willingness of the defendant to adduce fresh evidence will not arise because he has opposed the amendment. I do not want to left the decision for the first appellate Court on amendment application. The reason is there is possibility of derailing the hearing of the first appeal. Hence, I am rejecting it. Hence, I intend to pass the following order:- ORDER: (a) Appeal is allowed. (b) The order dated 14-01-2015 passed by District Judge-1, Khamgaon in RCA No. 78/2008 is set aside. (c) The District Judge is directed to hear the appeal afresh. (d) Both the parties are directed to appear before him on 20-01-2020. (e) Both the parties are directed to complete their arguments within 6 months from 20-01-2020. (f) Each side is given time of 3 months and then the District Court to deliver the judgment as early as possible. (g) Parties to bear their own costs. (h) The appeal is disposed of accordingly.