1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.97 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 25.10.2010. 1. This is defendants' Second Appeal. The plaintiff had instituted the suit for recovery of possession of encroached area of 14 ares by the appellant. The trial Court dismissed the suit. In appeal filed by the plaintiff, the appellate Court decreed the suit and directed defendant Nos.2 and 3 to deliver possession of 14 ares land and defendant No.1 to deliver possession of 4 ares of land to the plaintiff. The defendant No.3 has only assailed the said judgment and decree. The defendant No.2 it appears has not filed any appeal against that impugned judgment and decree. 2. Mr.Dharashive, learned counsel for the appellant submits that the measurement could not have been relied upon by the lower appellate Court to grant the decree in favour of the plaintiff inasmuch as only the land of the plaintiff S.No. 122/A was measured and the land of the present appellant was not measured. In absence of the same, the exact area of encroachment could not have been determined. 3. The lower appellate Court has observed that twice the measurement had taken place and cadastral surveyor has been examined who has proved the measurement, the panchanama. The said measurement has taken place in presence of all the parties. PW 2 had conducted the measurement as per the application of the plaintiff and PW 3 was appointed by the Court as a Commissioner to conduct the measurement. In both the measurements it has been found that the defendant Nos.2 and 3 have encroached about 14 ares land of the plaintiff. There is no contradiction in the said two measurements. No error was pointed out in the said measurements. In light of the same, no error can be found in the judgments of the Courts below. 4. Moreover, this Court vide order dated 22.4.2010, had accepted the request of the appellant for again appointing the Commissioner and measuring the lands. Though the said order was passed on 22.4.2010, till this date the amount for measurement has not been deposited by the appellant. Mr.Dharashive, learned counsel states that he has intimated about this order to the appellant but the appellant has shown his financial difficulty of depositing the amount. Be that as it may, the said appointment of the Commissioner by this Court was to facilitate and eradicate the doubt of the appellant but the appellant has failed to avail the said opportunity by that acts of omission. 5. As no error can be found in the judgments of the Courts below, no substantial question of law arise. In light of the same, the Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.25.10.2010. asp/office/sa97.10