1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.871 OF 2009. Hussainkhan S/o Nasibkhan and others ... Appellants. Versus City and Industrial Development Corporation of Maharashtra Ltd., Aurangabad. ... Respondent. ... Mr.R.F.Totala, advocate for the appellants. Mr.A.S.Bajaj, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 17.12.2009. PER COURT 1. Heard counsel. 2. The plaintiffs are the legal heirs of deceased Nasibkhan, who is holder of agricultural land bearing S.No.11/1. There is no dispute about the fact that a major chunk of said land 2 was acquired by the Respondent (defendant) - Cidco. The plaintiffs filed suit for relief of mandatory injunction directing the Respondent - Cidco to acquire the remaining land which was allegedly encroached over. It was contended by the plaintiff that as a result of measurement through cadastral surveyor, the encroachment was noticed and, therefore, they are entitled to get back possession or compensation on account of acquisition if the Cidco is ready and willing to acquire the same. 3. The parties led evidence in the trial Court in order to prove the respective contentions. The trial Court held that there was encroachment and, therefore, decreed the suit. The trial Court directed the Cidco to acquire encroached area of 44 Ares by following due procedure or if the same was not acquired then to restore possession of the plaintiffs. The first appellate Court allowed the appeal preferred by the Cidco. 4. What appears from the reasoning of the 3 first appellate Court is that the testimony of the cadastral surveyor was discarded for the reason that he had no located the boundaries of the land. It was also noticed that the cadastral surveyor was unable to locate the existence of permanent boundary marks nor could express anything about the area of the land which was in possession of the plaintiff as on the date of the measurement. It is pointed out by learned counsel for the Cidco that the version of the plaintiffs' witness i.e. PW Hussainkhan clearly shows that he was unable to narrate about details in respect of the plots sold by him after the measurement in 1996. He was unable to tell about the area which was left with him at the time of measurement carried out by PW Raghunath the cadastral surveyor. The first appellate Court also noticed that the plaintiff did not place on record copy of the 7/12 extract. 5. Mr.Totala, submits that the deficiencies in the statement of PW 2 Raghunath - Cadastral surveyor, could be explained. He would submit that the report of the Cadastral surveyor 4 could be recalled by the Court or the Court could have directed reappointment of the Commissioner. He would submit that it was improper to dismiss the suit on account of such deficiencies. 6. Mr.Totala, seeks to rely upon certain observations in SA No.97/2009 of which a copy is placed on record. 7. Whether to believe testimony of a witness or to discard his version is purely a question of judicial determination of the fact. It can not be a question of law. The copy of judgment in SA No.97/2009, no doubt, is helpful to the appellants to some extent because the Court has held that dismissal of the suit merely because proper local inquiry is not held can not be sustained. This is not a legal principle laid down by the Court in the given case but it is only a finding as such. It depends on fact situation of each case whether to direct further inquiry by the Court Commissioner or to ask him to explain further details. The fact situation in the present case goes to show that PW 5 Hussainkhan (plaintiff No.1) was unable to locate area of the land sold by him and the area of the land which was in his possession at the time of measurement which was carried out in the year 1996. He admittedly alienated 20 plots of 20x30 fts. each. He admitted that he was unable to state as to how much area was left with him when the Cadastral surveyor i.e. PW Raghunath had carried out the work of measurement. He further deposed that only his land was measured by PW Raghunath and not the land of the Cidco. These are the admissions coupled with the facts brought on surface during cross-examination of PW 2 Raghunath, which indicate absence of any tipan or scientific method of measurement by fixing permanent boundary marks at the first, which navigated the impugned decision rendered by the first appellate Court. Considering these aspects, I have no hesitation in holding that the Second Appeal does not involve any substantial question of law as such. Hence, it is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa87109 6