-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.1614 OF 2005 APPEAL NO.1614 OF 2005 APPEAL NO.1614 OF 2005 Mubarak Babalal Attar ...Appellant vs. Neela Narayan Deshpande ...Respondent Mr.R.M.Momin for the Appellant Mr.Abhijeet Khandarkar h/f Mr.S.G.Deshmukh for the Respondent CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 7, 2008 : FEBRUARY 7, 2008 : FEBRUARY 7, 2008 P.C.: P.C.: P.C.: 1. Heard Advocate for the Appellant. The Appellant is the original plaintiff. According to the case of the Appellant-plaintiff, he along with other 52 persons purchased plots out of survey Nos.136/1A, 136/2 and 135/1. According to the Appellant he is in possession of a plot admeasuring 3 gunthas out of the suit property. The Respondent-defendant claims to have purchased a plot from survey No.136-1B. According to the case of the Appellant the Respondent started disturbing his possession. Therefore, the suit for perpetual injunction was filed which was dismissed by the trial court and the decree passed by the trial court has been affirmed by the Appellate Court in the Appeal. 2. The submission of the learned Advocate for the Appellant is that the Appellant had filed an application at Exh.27 before the Appellate Court seeking appointment of a Survey -2- Officer as the Court Commissioner and the said application has been erroneously rejected by the Appellate Court without assigning any reasons. He submitted that the Respondent has purchased an altogether different plot which forms a part of survey No.136/1-B and the Respondent has no concern with the plot held by the Appellant. He submitted that due to dispute between the Appellant and his Advocate, his Advocate did not appear at the time of hearing of the Appeal and therefore, an order of remand may be passed. 3. Perusal of the Judgment of the Appellate Court shows that not only that Advocate for the Appellant was present but written arguments were filed by both the Advocates. Therefore, the request for remand cannot be accepted. The Appellate Court has considered the prayer made by the Appellant for appointing a Survey Officer as a Court Commissioner. The Appellate Court has observed that the documentary evidence on record shows that when the sale deed was executed in the year 1983 in favour of the Appellant and the 52 others, the property subject matter of the sale deed was not converted in the non agriculture land and therefore the plots were not authorisedly demarcated. The Appellate Court found that along with the suit, the Appellant-plaintiff did not produce a rough sketch showing the plot allegedly held by him. -3- 4. The Appellate Court has referred to the oral evidence of the Appellant and other witness examined by the Appellant. The Appellate Court found that the possession receipt allegedly executed by one Vijaykumar Patil in favour of the Appellant was not reliable as there was an overwriting on the said possession receipt in the boundaries of the plot described in the possession receipt. Considering all these factors and especially the oral evidence on record, the Appellate court found that no purpose will be served by appointing a Survey Officer as a Court Commissioner. Even the trial court has scrutinised the entire evidence on record and has held that the Appellant has failed to establish identification of the plot in respect of which he is claiming to be in possession. No fault can be found with the view taken by the courts below in refusing to pass a decree for perpetual injunction. No substantial question of law arises. Second Appeal is dismissed with no order as to costs. JUDGE JUDGE JUDGE