(1) SA. 704.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 704 OF 2009 WITH CIVIL APPLICATION NO. 8686 OF 2004 IN S.A. 704 OF 2009 Ramrao S/o Limbaji Mane, Age : 56 years, Occu.: (Retire Teacher) Agri., R/o. Partur, Dist. Jalna .. Appellant VERSUS Ganesh S/o Khandrao Kulkarni, Age : 37 years, Occu.: Agri., R/o. Partur, Dist. Jalna .. Respondent Mr. Arun G. Dalal, Advocate h/f. Mr. V.D. Salunke, Advocate for the Appellant/Applicant None present for the respondent though served ... CORAM : K.U. CHANDIWAL, J. DATED : 5TH MAY, 2010 PER COURT:- 1] The plaintiff came with a case of encroachment of 84 R in his land by defendant in the year 1985 nearby the Gudipadwa. The learned Civil Judge Junior Division, Partur by his judgment dated 20.7.1994 negated the contentions by dismissing the suit. The aggrieved plaintiff carried the matter before the learned Additional District Judge at Jalna in Regular Civil Appeal no. 172 of 1994, and by judgment dated 23.4.2001 the learned Additional District Judge reversed the judgment and found the defendant to be in (2) SA. 704.2009 un-authorised/illegal possession of 84 R of the property belonging to the original plaintiff, directed it's delivery. The observations/directions by the learned Additional District Judge, Jalna are assailed in the Second Appeal by the defendant. 2] Mr. Dalal learned counsel representing the defendant/appellant submits that the first appellate Court committed mistake in appreciation of evidence of D.W.3 surveyor Chormare and evidence of earlier surveyor Dhage. 3] It is a matter of record in the measurement carried by surveyor Dhage, he found encroachment by defendant to the extent of 84 R from southern side while on north side also encroachment to the extent of 25 R from the property of the plaintiff. While D.W.3 Chormare found encroachment by the defendant (appellant) to the extent of 6 R, which was excess to the holdings recorded in the revenue record. 4] The controversy certainly revolves to the evidence of the cadestral surveyor referred above. Mr. Dalal contended that the survey caused by P.W.1 Dhage was in the absence of appellant-defendant Ramrao however, evidence of Dhage dispels this position as he found that at the time of measurement defendant no.1, Sawji Rathod, Ganesh were present. Brother of the defendant and one Bhagwan attested the panchanama (3) SA. 704.2009 drawn by him. It is curious P.W.1 Dhage has measured entire land survey no. 27. He found 6 sharers of the land from the different branches. He caused separate measurement in respect of the land in possession of the defendant and found that the defendant was in possession of 2H 86R while the plaintiff's land was 2H 14R as against his ownership of 3H 23R. Consequently, the evidence illustrate encroachment by defendant to the extent of 84R. 5] The first appellate Court dealt with the evidence of P.W.1 Dhage exhaustively in paragraph 8 of the judgment. The evidence of D.W.3 Chormare proved by production of the map at exhibit 53, though was not objected by the plaintiff to be taken on record, by itself will not be an admission by the plaintiff of only 6 R of the land encroached by the defendant/appellant. 6] Indeed, the second measurement caused by D.W. 3 was showing the defendant to be in possession of more area than he owned, while his brother was put in possession though there was no entitlement to the brother of the defendant. There was no reason for defendant no.3 to have added area to brother of defendant no.3 in respect of either the measurement and the rights of the property. (4) SA. 704.2009 7] Camouflage created by D.W.3 was certainly analysed, and properly crystallised by learned first appellate Court. It is more than clear that D.W. 3 while carrying his initial duty as Court Commissioner, exceeded his limits as an independent witness and resulted in causing loss to the interest of the plaintiff in respect of encroachment over his land. There was no reason for D.W.3 to show Laxman (brother of the defendant) to be in possession of some portion in the land beyond the land of the defendant. It is thus clear the calculation carved out and carried by D.W.3 Chormare was not in tune with the record. The learned Judge also found, D.W.3 did not explain as to how he carried measurement of entire survey no.27 and D.W.3 even did not fix points as was mandatorily expected. 8] Taking survey of the situation, the first appellate Court being a fact finding Court, having analysed evidence of P.W.1, keeping in juxtaposition reached to the conclusion of existence of 84 R encroachment by defendant-appellant. This finding does not warrant any interference. Second Appeal does not project any substantial question of law, dismissed. No costs. Civil Application no. 8686 of 2004 also stands dismissed. Sd/- (K.U. CHANDIWAL, J.) arp