1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.37 OF 2005 with CIVIL APPLICATION NO.909/2005. 1) Sangram s/o Rama Walande and others - APPELLANTS VERSUS 1) Baswaraj s/o Prabhu Walande and another - RESPONDENTS ***** Mr.SV Chandole, Adv. h/for Mr.VG Sakolkar, Advocate for Appellants; ----- CORAM : K.U.CHANDIWAL, J. DATE : 18th March, 2010. PER COURT : 1) Heard learned Counsel for the appellants extensively. 2) The concurrent findings against the appellants are subject of challenge in this second appeal. 3) The interse ownership to the respective 2 properties is not in controversy. The controversy centers to plaintiffs staking claim of encroached portion of 18 R. from western side of their land, having been so found to have been encroached by the appellants, sought removal thereof. 4) Mr.Chandole submits, a substantial question of law in the matter is, since there was earlier suit being RCS No.236/1997, filed by father of the plaintiffs against the appellants, concerning the suit land itself; and since it was pending, there was no legal requirement to have filed a subsequent suit being RCS No.80/2001. 5) These submissions need little dissection. At Exhibit-21, before the learned Judge, there was a Written Statement from the appellants herein, which in unequivocal terms refers to filing of RCS No.236/1997. Since there was a counter claim, the said suit remained in tact as the said suit abated due to death of original plaintiff. 6) Since the plaintiffs felt that there was encroachment on their property, an application in terms of Section 85(2) of the Maharashtra Land Revenue Code was moved to the competent authority and on getting appropriate permission, Cadestral 3 Surveyor was appointed, the Cadestral Surveyor issued notices to the adjoining owners and the land was measured and report of Cadestral Surveyor indicated, encroachment on western side to the extent of 18 R. from 1 hectare 82 R. land of the plaintiffs. The evidence of Cadestral Surveyor before the learned Judge demonstrated that his report/panchanama was in tune with the spot inspection carried by him. In the light of above situation, it is difficult, pendency of RCS No.236/1997 could have proved as a blot or estoppel for the plaintiffs to stake the claim for removal of encroachment from their property, which was 1 hectare and 82 R to the extent of 18 R. No substantial question of law could be formulated. The above question projected by the learned Counsel for the appellants will barely be accelerating. Consequently, Second Appeal is sans merit, it is dismissed with CA. No costs. (K.U.CHANDIWAL) JUDGE bdv/sa37.05