1 SA 408.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.408 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.V.M.Damale, Advocate for the appellant. Mr.N.V.Gaware,Advocate for Res.Nos. 2 to 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 02/05/2011 PER COURT : 1. This is an Appeal by the original plaintiff. The plaintiff had filed Suit for injunction restraining the defendants from interfering in possession of the plaintiff. The trial Court partly decreed the Suit to the extent of 30 ft. x 30 ft. from G.No. 152. The defendants preferred Appeal. The appellate Court allowed the Appeal. The appellate Court also held that the plaintiff is entitled to the land to the extent of 30 ft. x 30 ft. from G.No. 152, but came to the conclusion that the notice which was issued was in respect of land which is part of CTS No. 353. Aggrieved thereby, the plaintiff has filed the present Appeal. 2 SA 408.2010 2. Mr. V.M.Damale, the learned counsel for the appellant submits that the dispute is regarding the identity of the suit property. The plaintiff is armed with ‘ Kabala ’, which is the part of G.No. 152 and he has every right to retain that property. When the defendants are coming with the case of encroachment, then the burden lay upon the defendants to prove that the alleged encroachment is part of CTS No. 353. According to the learned counsel, it is only by measurement, the Court could have come to the conclusion and even at this stage the Commissioner can be appointed to measure the property and demarcate G.No. 152 and CTS No. 353. The defendants have failed to prove that the plaintiff is in possession CTS No. 353. 3. Per contra Mr.N.V.Gaware, the learned counsel for the respondent nos. 2 & 3 submits that both the Courts have come to the conclusion that the right and interest of the plaintiff is only to the extent of 30 ft. x 30 ft out of G.No. 152. CTS No. 353 admeasuring 12 Sq. Meters is a public small well under the control of Gram Panchayat. The plaintiff could not show his right, title and interest over that part of the land. 4. With the assistance of the learned counsel 3 SA 408.2010 for the respective parties, I have gone through the Judgments. 5. The plaintiff at no point of time had applied U/s 75 read with Order XXVI Rule 9 of the Code of Civil Procedure for appointment of Commissioner to measure the land. The notice, so also the ‘ Akhiv Patrika ’ [ Exh. 58 ] shows that CTS No. 353 to the extent of 12 Sq. Meters is a public small well under the control of Gram Panchayat. It is not the case of the plaintiff that the well is situated in the land allotted to him pursuant to ‘ Kabala ’ i.e. 30 ft. x 30 ft. from G.No. 152. On the other hand, ‘ Akhiv Patrika ’ shows CTS No. 353 to the extent of 12 Sq.Meters as a public small well. So, if the plaintiff was contending otherwise, it was for the plaintiff to plead and prove the said factum that the said area which is shown in CTS No. 353 is in fact allotted to him. The properties given to the plaintiff under the ‘ Kabala ’ i.e. G.No. 152 and CTS No. 353 are distinctly identifiable. The Court below had taken into consideration the said documents, the resolution, the order of the Collector and the oral evidence and have come to the conclusion that the land allotted to the plaintiff is from G.No. 152 admeasuring 30 ft. x 30 ft. and has nothing to do with CTS No. 353 where public small well is situated. 4 SA 408.2010 6. In light of the above, the conclusion drawn by the Court below is a possible and plausible conclusion. The Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 7. In view of dismissal of the Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 408.2010