IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.524 of 2009 Ram Chandra Yadav & Anr. Versus Raj Kishore Dubey & Ors. ---------------------------------- 5 21-11-2011 Heard Mr. Dhrub Narain, learned counsel appearing in support of the appeal. This appeal has been filed against the judgment and decree dated 11-9-2009 passed by the Additional District Judge IV, Aurangabad in T.A.No. 65/2007/75 of 2009 allowing the appeal in part against the judgment and decree dated 28-6-2007 passed by Subordinate Judge II, Aurangabad in T.S.No. 186/96/112 of 2006. The plaintiffs are appellants here against the judgment of affirmance by both the courts below by which the suit of the plaintiffs for removal of encroachment with regard to Plot no. 34 only has been decreed. The plaintiffs have filed the suit praying for removal of encroachment with regard to Plot nos. 308, 309, 310 and also with regard to Plot no.34. The defendants contested the suit denying the assertions of the plaintiffs. It is not in dispute that a survey knowing pleader commissioner was appointed to scientifically measure the suit plots and submit his report after scientific investigation of the case of encroachment as made out by the plaintiffs. The said survey knowing pleader commissioner submitted his report and the trial court after considering the said report along with the evidence led by the parties decreed the suit and directed the defendants to remove the encroachment made by them on the plots of the plaintiffs. However, in appeal by the defendants the lower appellate court reappraised the evidence on 2 record as well as rival submissions of the parties and came to the conclusion that the plaintiffs could not establish the case of encroachment with regard to plot nos. 308, 309 and 310. The learned appellate court below has also come to the conclusion that the report of the survey knowing pleader commissioner with regard to plot no. 308, 309 and 310 was not scientific and not to be relied upon, but the lower appellate court found that the report of the pleader commissioner with regard to measurement of plot no.34 and encroachment over it to be scientific and relying upon the said report along with the evidence and pleading of the parties, the lower appellate court affirmed the decree with regard to Plot no.34. The learned senior counsel appearing on behalf of the appellants submitted that once the report has been found to be not scientific and incorrect with regard to Plot nos. 308, 309 and 310, the same yardstick should have been applied with regard to the measurement by them of Plot no.34. It has been urged by the learned senior counsel that the appellate court has not correctly appreciated the facts and circumstances of the case and has passed a wrong judgment. From the perusal of the appellate court judgment it appears that Plot nos. 308, 309 and 310 together and Plot No. 34 are at different places. The appellate court has found the measurement with regard to Plot nos. 308, 309 and 310 to be not scientific and has refused to rely on it. However, with regard to Plot no. 34, which is at a different place, the measurement by the 3 survey knowing pleader commissioner has been found to be scientific and correct and has been relied upon by the lower appellate court as well as the trial court. Thus, there is concurrent finding with regard to encroachment by the defendants over Plot no.34. During the course of submission nothing could be shown to establish that the findings of fact arrived at by the courts below are perverse. As such, there is no substantial question of law arises for consideration in this appeal, which is accordingly dismissed. roy ( V. Nath, J.)