1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.600 OF 2007 Vasant Gangaram More & Anr. .. Appellants V/s. Dharmaji Shivaji Mohite .. Respondent Mr.N.N.Gavankar with Arfan Sait for the Appellants/Applicants. Mr.S.G.Karandikar for the Respondent. CORAM : R.M.SAVANT, J. DATED : AUGUST 6TH, 2008. P.C. At the outset Shri N.N.Gavankar seeks leave to amend so as to add grounds (bb) (bbb) to the grounds mentioned in the Memo of Appeal, leave granted. Amendment to be carried out forthwith. 2 2. This Second Appeal arises out of the Judgment and decree dated 22nd June, 2007 passed by the learned Principal District Judge, Ratnagiri by which the Judgment and decree passed by the Trial Court dated 6th December, 2003 came to be confirmed. 3. The Appellants herein are the original Defendants in Regular Civil Suit No.59 of 2000 filed by the Respondent No.1 herein. The said suit was filed in respect of survey No.6, Hissa No.16 admeasuring 24R situated at Village Sadavali, Taluka Sangmeshwar. The Plaintiff is the owner and possessor of the said land in question. Apprehending that Defendants would be encroaching the said suit land, the Plaintiff filed the said suit for perpetual inunction and declaration. The Plaintiff also prayed for mandatory orders restraining the Defendants from making construction upon the suit land. The boundaries of the said suit property is mentioned in the paragraph one of 3 the Plaint. The Defendants filed their written statement and opposed the said suit on the ground that the boundaries mentioned in the plaint are those of the land owned by them i.e. Survey No.6 Hissa No.6. It was the case of the Defendants that the Plaintiff was unaware of the location of his own land and he was mistakenly claiming relief in respect of the land owned by the Defendants. It was the case of the Defendants that since they are the owner of the said Survey No.6 Hissa No.6, they have a right to cultivate the said land and it is on account of the misconception on the part of the Plaintiff that the said suit has been filed. 4. Parties went to trial, the Defendants in support of their case relied upon the Map Exh.79 to show that the lands in respect of which injunction was sought was infact land bearing survey No.6, Hissa No.6. The Trial Court on the basis of the material that was before it in the form of both 4 oral and documentary evidence came to a conclusion that the suit property lies situate within the boundaries mentioned in the plaint and that there was no confusion about the same. The Trial Court held on the basis of Exh.79 and the evidence of D.W.1 Shri Rasal that the corrections carried out in the original land acquisition Map M.R.102, of which the out come is the Map Exh.79 was done by the said surveyor Shri Rasal in breach of the provisions of section 248 of the Maharashtra Land Revenue Code. The Trial Court held that the said correction was also carried out by the surveyor without any notice to the Plaintiff etc. The Trial Court was therefore taking into consideration the fact that the figure 15 was encircled and was replaced by writing figure 6 on the top of it came to a conclusion that the said correction was carried out unauthorizedly. The Trial Court therefore issued a declaration that the Plaintiff is the owner of the suit property and permanently 5 restrained the Defendants i.e. The Appellant herein, obstructing the peaceful possession of the Plaintiff over the suit property. 5. The matter was carried in Appeal by the Defendants i.e. the Appellants herein by filing Regular Civil Appeal No.1 of 2004. The Lower Appellate Court by its Judgment and order dated 22nd June, 2007 confirmed the decree passed by the Trial Court. 6. Both the Courts have concurrently held that the suit property was situated within the boundaries mentioned in the plaint and that the correction carried out by the surveyor Shri Rasal by way of Exh.79 was unauthorized. 7. On behalf of the Appellants/Defendants it is sought to be contended that inview of the controversy involved, it is necessary to appoint a 6 Commission to carry out the survey and measurement of the lands in question. The learned counsel Mr.Gavankar relied upon the Judgment of Supreme Court reported J.T.2000(7) SC 379 in the matter of The Commissioner, Sales Tax, U.P.,Lucknow V/s.M/s.Prag Ice & Oil Mills and others. Wherein the Apex Court has held that to ascertain the correctness of the respective claims, it is necessary that the Commissioner should be appointed. In my view, the said reliance is misplaced, since the Defendants themselves have relied upon Exh.79 which is a Map prepared pursuant to an application made by the Defendants in the year 2002 after filing of the written statement in the year 2001. Shri Karandikar, the learned counsel appearing for the contesting Respondent submits and tenders the order dated 23rd September, 2002 passed by the Taluka Inspector of Lands Record, Sangmeshwar pursuant to which the correction was made as a result of which Exhibit 79 came into 7 being. 8. As indicated above, both the Courts have concurrently held against the Defendants and in favour of the Plaintiff. 9. In my view, the challenge raised in the Second Appeal does not involve any substantial question of law. 10. The Second Appeal is, accordingly, dismissed. [R.M.SAVANT, J.]