1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.880 OF 2009 1 Nagorao s/o Sambhaji Gharke, aged: 55 years, Occ: Agril., R/o Kolegaon, Tq.Naigaon (Kh). 2 Bhagoji s/o Vithoba Mirkute, since deceased on 24.9.06, through his legal heirs: 2/1 Jijabai w/o Bhagoji Mirkute, age: 65 years, Occ: Household, R/o Koklegaon, Tq.Naigaon. 2/2 Sundrabai w/o Vishwamber Kapale, age: 40 years, Occ: Household, AT/Pr.Koklegaon, Tq.Naigaon. 2/3 Balaji s/o Bhagoji Mirkute, age: 37 years, Occ: Agri., R/o Kolegaon, Tq.Naigaon. 2/4 Sumanbai w/o Govind Solunke (died) 2/5 Lalitabai w/o Sanjay Shinde, age: 33 years, Occ: Household, R/o Gangakhed, Tq.Gangakhed. 2/6 Vimalbai w/o VenkatraoKondalwade, age: 30 years, Occ: Household, Shelgaon, Tq.Naigaon (Kh), District Nanded. 2/7 Radhabai w/o Santosh Shinde, age: 22 years, Occ: Household, R/o Sujlegaon, Tq. Naigaon, District Nanded. Appellants Versus 1 Venkatrao s/o Gangaram Mirkute, age: 40 years, Occ: Agril., R/o Koklegaon, Tq.Naigaon (Kh), 2 District Nanded. 2 Bhujanga s/o Hulba, age: 50 years, Occ: Agril., R/o Koklegaon, Tq. Naigaon (Khairgaon), District Nanded. Respondents Mr.U.B.Bilolikar, advocate for appellants. Mr.M.D.Narwadkar, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 04 th February, 2010. P.C.: 1 This is an appeal by original defendants raising exception to concurrent judgments delivered by Courts below. 2 Respondents – original plaintiffs instituted Regular Civil Suit No. 170/91 seeking recovery of encroached portion along with past and future mesne profits. It is not necessary to go into factual details of the matter. Suffice it to mention that there were two measurements carried out in order to ascertain encroached area and after considering relevant evidence placed on record, trial Court was pleased to decree the suit. Appellants – original defendants preferred an appeal before the first appellate Court which was allowed and the matter was remitted back to the trial Court by order dated 29.03.2003. The first appellate Court remitted matter back with a specific direction considering request made by defendants that further opportunity needs to be extended to get the land re-measured in presence of both parties. 3 After remittance of matter back to the trial Court, trial Court passed an order on 14.08.2003 directing appointment of Court Commissioner for carrying out measurement of disputed land. Defendants were directed to deposit necessary charges, however, defendants failed to deposit Court 3 Commissioner’s charges. As such, trial Court was constrained to revoke the order passed earlier, on 05.04.2004. Defendants again presented an application on 11.08.2005 requesting the Court to accept Court Commissioner’s charges and direct measurement of land by D.I.L.R. The trial Court again reconsidered request made by defendants and permitted them to deposit Court Commissioner’s charges and issued direction to the defendants to place on record necessary documents i.e. 7/12 extracts in respect of land sought to be measured. They were also directed to deposit the cost. Defendants, however, in spite of extending second opportunity failed to comply with the order passed by trial Court. As such, there was no option but to proceed with hearing of the suit. The trial Court, considering evidence placed on record, again granted decree in favour of plaintiffs. Same was subjected to challenge by original defendants in Regular Civil Appeal No.36/2006, which came to be heard and disposed of by District Judge-1, Biloli, who was pleased to dismiss same on 08.07.2009. 4 I have perused judgments delivered by both the Courts below. I am of the opinion that view adopted by Courts below is reasonable and proper. The Courts below, after appreciation of evidence placed before the Court, have recorded findings of facts in favour of plaintiffs and those need not be interfered in exercise of jurisdiction under Section 100 of the Code of Civil Procedure while considering instant Second Appeal. No substantial question of law arises for consideration in the appeal. 5 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa880,09