JUDGMENT : Heard Shri S. R. Deshpande, learned counsel for the appellant and Smt. S.W. Deshpande, learned counsel for the respondent. 1. The parties shall be referred to as they were arrayed before the Trial Court. 2. The plaintiff had filed a suit bearing R.C.S. No.71/2010, against his cousin, the defendant alleging that the defendant had encroached on his agricultural land to the extent of 0.03 R, and claimed a decree for possession. The land of Survey No.71, which was initially held jointly by the plaintiff and defendant was separated and was renumbered as Survey No.71/1 (new Gut No.139) and Survey No.71/2 (new Gut No.125) respectively. The plaintiff who owns the land bearing Gut No.139, claimed that an area of 0.03 R. from Gut No.139 was encroached by the defendant resultant to which, the suit for removal of encroachment came to be filed. 3. Before the Trial Court, the measurement of the land came to be made on 25/06/2010 by PW-2 Sarde, relying upon whose evidence, and the measurement map at Ex.63, the learned Trial Court passed a decree for removal of encroachment and possession as well as mesne profit against the defendant on 27/01/2014. 4. The aforesaid judgment and decree was challenged by the original defendant by way of R.C.A. No.28/2014. The Appellate Court by judgment dated 18/05/2018 has partly allowed the appeal by setting aside the judgment and decree as passed by the Trial Court and remanded the matter to the Trial Court to decide it afresh in light of the observations made in the order. 5. It is submitted that after remand, the learned Trial Court had appointed a fresh Commissioner, who has measured the land on 30/01/2019 and has submitted its report to the Trial Court on 31/05/2019, which is at Exh. 94 before the Trial Court. 6. The learned counsel for the defendant, therefore, submits that since the entire exercise as required to be done by the judgment dated 18/05/2018 is completed, the present appeal is rendered infructuous. 7. Shri S.R.Deshpande, leaned counsel for the appellant, takes exception to the same. He submits that the course adopted by the First Appellate Court was impermissible in law, as there was no prayer for remand made in the memo of appeal, nor any ground raised in respect of the same. 7. Shri S.R.Deshpande, leaned counsel for the appellant, takes exception to the same. He submits that the course adopted by the First Appellate Court was impermissible in law, as there was no prayer for remand made in the memo of appeal, nor any ground raised in respect of the same. He, therefore, submits that it was not permissible for the learned Lower Court to have remanded the matter by the impugned judgment. 8. He further places reliance upon the judgment in case of Debendranath Nandi Vrs. Natha Bhuiyan, reported in AIR 1973 Orissa 240 to contend that such a course is impermissible. 9. He also places reliance upon Gajraj and others Vrs. Ramadhar and others, reported in AIR 1975 Allahabad 406 to contend that where the Lower Appellate Court finds that the clear demarcation of boundaries is necessary for a finding on the question of ownership, the entire suit should not be remanded under Order 41 Rule 23 of the Code of Civil Procedure, but Commission under Order 26 Rule 9 be issued for local investigation which will not necessitate a recourse to the provisions for getting additional evidence under order 41. 10. He further places reliance upon Syeda Rahimunnisa Vrs. Malan Bi (dead) by L.Rs. and another, reported in 2016 (10) SCC 315 and specifically in para 35 to contend that no order of remand can be made unless the same is claimed and a case is made out. 11. He further relies upon MSRTC Vrs. Gurupritsingh Madansingh Chopda, a decision given by the learned Single Judge of this Court on 08/08/2019 in Writ Petition No. 7705/2018 to buttress his submission. 12. I have heard the learned counsel for the parties and perused the record. 13. It is trite position of law that when an allegation of encroachment is made and claim for its removal and consequent possession is sought to be enforced, in respect of adjacent lands, it is necessary, that there ought to be a joint measurement of both the lands in the presence of the parties. In the instant case, though the land was measured by the Cadastral Surveyor who drew a measurement map at Exh.63, it is reflected from the position on record, that the plaintiff had not applied for measurement of both the survey numbers. In the instant case, though the land was measured by the Cadastral Surveyor who drew a measurement map at Exh.63, it is reflected from the position on record, that the plaintiff had not applied for measurement of both the survey numbers. The PW-2 Cadastral Surveyor in his deposition has stated that he has carried out measurement only in respect of Survey No.139 owned by the plaintiff and not of the adjacent land owned by the defendant. It is further found that, the defendant was not present at the time of measurement, nor was any notice issued to the defendant, prior to the measurement. Exh.63, the measurement report, therefore, was found not to depict the correct position. There are a catena of decisions which hold that when a plea of encroachment is made by a neighbour, it is necessary that the measurement should be done of both the lands and in the presence of parties, the basis of which measurement, ought to be a minimum of two traverse points. In the instant case, the plaintiff, did not apply for measurement of his land as well as defendant’s land, which originally were part of the same survey number. 14. In this light of the matter, the learned Appellate Court rightly found that there was a need to measure both the lands. The judgment in the case of Debendranath Nandi (supra) cited by learned counsel for appellant, in fact, clearly supports this proposition as is reflected from what is held in para 6 which is as under :- “6. ------ A Commissioner for local investigation is deputed under Order 26, Rule 9, Civil P. C. when the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or for ascertaining any other matter mentioned in the said rule. The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record. The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record. The trial Court’s decision in the present case to depute a Commissioner for the above purpose is indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property. In view of the rival averments made by the parties and in view of the evidence on record, a Commissioner's report of local investigation was absolutely necessary in this case. The appellate Court, therefore, was not justified in deciding the matter without directing issue of a fresh commissioner for the aforesaid purpose. The Hon’ble Judges of the Calcutta and Patna High Courts and my learned brother Misra, J. in the above-mentioned reported decisions have said that the proper course under such circumstances is to direct the appointment of another Commissioner calling upon him to submit a fresh report for which local investigation had been directed and made earlier in the case. On the above considerations I am satisfied that the procedure adopted by the Court below in deciding the matter in the manner aforesaid most probably has produced error or defect in the decision of the case on merits. Therefore, this is a fit case which should go back to the trial Court on remand so that the Court can appoint a suitable Commissioner to enquire into the exact matter which was earlier referred to the Commissioner for local investigation by the trial Court. On obtaining his report the trial Court shall dispose of the matter afresh in accordance with law.” 15. In the case of Gajraj and others Vrs. Ramadhar and other, the question of leading additional evidence, was sought to be obviated by appointment of a Commissioner under order 26 Rule 9 of the Code of Civil Procedure, in the light of which, the Court held that the Commission can be appointed by First Appellate Court without remanding the matter. The said judgment is therefore, is of no assistance to the learned counsel for the appellant. 16. The said judgment is therefore, is of no assistance to the learned counsel for the appellant. 16. In the case of Syeda Rahimunnisa (supra), the Hon’ble Apex Court has held as under :- “35. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.” This clearly indicates that to order a remand there should be strong reasons recorded. 17. In the instant matter, it has been found by the First Appellate Court that, the measurement done by the Cadastral Surveyor (PW-2) was in respect of only land bearing Survey No.139 and not of the adjacent land, in spite of the admitted position that both were earlier in point of time part of the same block of land bearing Survey No.71. That being the position, the necessity of leading evidence on the fresh survey map and report and the cross-examination of the witness in this regard, was clearly indispensable. That being the position, the necessity of leading evidence on the fresh survey map and report and the cross-examination of the witness in this regard, was clearly indispensable. The provisions of Order 41 Rule 23 and 23-A of the Code of Civil Procedure, empowers the Court in appropriate cases to direct remand where a retrial is considered necessary. The provisions of Order 41 Rule 23 and 23-A, are not always exercizable only at the behest of the appellant or a party. In a case where the Court deems it necessary, for reasons to be recorded in writing, it is equally empowered to order the remand. 18. In the instant matter, reasons have been recorded by the learned Appellate Court for directing remand which are reflected in para 10 of the impugned judgment, in light of which, I see no reason to interfere with the impugned judgment. 19. The appeal is, therefore, without any merit and the same is accordingly dismissed with no order as to costs. 20. The learned Trial Court shall decide the suit in light of observations of the First Appellate Court and in consonance with law.