1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 333/2009 WITH (C.A. NOs. 8112/2006 and 11577/2009) Thaka Suka Paymode ... Appellant. versus Eknath Ananda Paymode and others ..Respondents. Mr. P.R. Katneshwarkar h/f Mr. N.R. Katneshwarkar, Advocate for appellant Mr. M.M. Nerlikar h/f Mr. S.T. Shelke, Advocate for respondents. CORAM : A.V. NIRGUDE, J. Date : 29-06-2010 ORAL ORDER : 1 This second appeal is filed challenging the concurrent finding of the Courts below that the appellant (original defendant No.1) and other defendants no. 2 to 5 had made encroachment on the land belonging to the respondent No. 1, to the extent of 26 R. The respondent No.1 filed this suit against not only the appellant here, but few more defendants also. His case was that his land Gat No.555 was encroached by various people all around. Before filing of this suit, the respondent No.1 got his land measured through the D.I.L.R. and the D.I.L.R. after following due procedure and giving notices to the interested parties got the land measured fixing boundaries etc.. He found that the appellant and other defendants made encroachment on northern as well as western boundaries. The Courts below accepted the case of the respondent No.1 and his witness the D.I.L.R. and decreed the suit as prayed for. This 2 second appeal is filed only by one of the defendants i.e. the defendant No.1. The respondent No.1 asserted that the defendants no. 2 to 5 had made encroachment to the extent of 26 R on northern portion of his land. The other defendants have not challenged the decree. So, all that is required to be seen here is, whether the judgment and decree passed by Courts below, which went against the appellant (defendant No.1) deserves to be disturbed ? 2 The learned Advocate appearing for the appellant, criticized the credibility of the evidence of the respondent No.1 and his witnesses. He pointed out that the D.I.L.R. did not notify the work of measurement to his client and in his absence, the work was carried out. He also pointed out that the work of measurement was not done properly and so, there is serious discrepancy in the report and map Ex. 60. All these objections were raised when the matter was before the Courts below and the Courts below rejected these objections recording cogent reasons. I am not inclined to interfere in this factual aspect of the case. However, there is a peculiar feature in this case which requires specific mention. The respondent No.1 specifically mentions in the plaint that the appellant and other defendants No. 2 to 5 had dug a well in the encroached area of 26 R. But the Courts below found and specific finding is recorded by the Courts below that the respondent No.1 /plaintiff did not prove that the there existed a well within the encroachment area, ad measuring 26 R. It has come on record that even the D.I.L.R. categorically stated that during his measurement work, he did not notice any well in he encroached area ad measuring 26 R. So, while dismissing the second appeal summarily, I am making it clear to the executing Court that during the execution and while the encroached area is restored to the respondent No.1, care should be taken not to disturb the area of land Survey No. 553 belonging to the appellant where he has a well. 3 ORDER The appeal stands dismissed. Civil applications disposed of. (A.V. NIRGUDE, J.) tsk/sa333.09