1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 643 of 2006 ( Shaligram Triambak Suradkar & another VERSUS Bhagwan Rakhamaji Borse & another ) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Deshmukh, Advocate for the appellants. Shri Kilor, Advocate for the respondents. CORAM : Smt. Vasanti A. Naik, J. DATE : 3 rd August, 2007. Heard learned counsel for the parties. The appellants are the original defendants. A suit was filed by the plaintiffs for a declaration they are the owners of Block no.151 of village Kardi and specially 8 R of land involved in the Revenue Case no.MRL/81/Dhad/7/94-95 decided on 26.06.1995 by the Sub Divisional Officer, Buldana. Further, the plaintiff also sought a decree for perpetual injunction restraining the defendants from obstructing the peaceful possession of the plaintiff over the 8 R of land involved in the revenue case. It was pleaded by the plaintiff that the plaintiff was the owner of Block no.151 which was situated within the boundary of village Kardi and the defendants were the owners of Block no.255 which was 2 admittedly situated within the precincts of village Dhad. The defendants initiated proceedings under Section 138 of the Maharashtra Land Revenue Code and the Sub Divisional Officer directed the plaintiffs to handover the possession of 8 R of land to the defendants. Consequent to the orders passed by the Sub Divisional Officer, the defendants were put in possession of 8 R of land which belonged to the plaintiffs. The plaintiffs, therefore, instituted the present suit seeking the two aforesaid reliefs. The defendants denied the claim of the plaintiff and pleaded that 8 R of land belonged to the defendant and the same was illegally encroached upon by the plaintiffs. According to the defendants, the Sub Divisional Officer had rightly granted the possession of the suit land in favour of the defendants. The defendants prayed for the dismissal of the suit. The trial Court, after framing the necessary issues, by a judgment dated 10.03.1999, decreed the suit of the plaintiff by holding that the plaintiff was the owner of the suit property. The Court held that the order passed by the Sub Divisional Officer was illegal and was not binding on the plaintiffs. The Courts held 3 that the plaintiff was entitled to the possession of the suit land and also for a grant of perpetual injunction, as prayed for by the plaintiffs. The judgment passed by the trial Court on 10.03.1999 was challenged by the defendants in an appeal. The first appellate Court, however, by a judgment dated 19.04.2006 dismissed the appeal filed by the defendants and confirmed the findings recorded by the trial Court. Both the Courts concurrently held that there was no question of encroachment on the land of one party by the other as there was a shiv in between the two lands which was 20 to 22 feet in width. The Courts further observed that the lands of the plaintiffs were situated in village Kardi and the lands of the defendants were situated in village Dhad. Both the Courts properly appreciated the evidence tendered by the parties on record and gave more weightage to the evidence tendered by the plaintiffs. The findings recorded by both the Courts are based on a proper appreciation of the material evidence on record. The submission made on behalf of the appellant that it was necessary for the trial Court to 4 have appointed a commissioner in the matter to have a joint measurement of the property is liable to be discarded for the reason that the defendant had not applied before the trial Court for appointment of a Court commissioner. Furthermore, it is also observed by both the Courts that there was shiv or village boundary in between Block no.255 and Block no.151 which was 20 to 22 feet of width, and therefore, there was no question of encroachment of the lands of the defendants by the plaintiffs. In view of this categorical finding of fact on the existence of shiv of a considerable width, in any case, the appointment of a Court commissioner could not have been of much assistance. Moreover, there was ample evidence on record to prove the case of the plaintiffs. Even otherwise, the prayer made on behalf of the appellants at the second appellate stage seeking a remand of the matter to the trial Court for the appointment of a commissioner cannot be granted as the defendants had failed to avail the opportunity of getting a commissioner appointed at the trial stage. The findings recorded by both the Courts are 5 pure findings of facts which do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE