1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 793 OF 2005 Shankar Zendu Bari (deceased through LRs) & others .. APPELLANTS VERSUS Sampat Sayaji Bari & others .. RESPONDENTS Shri V.B. Anjanwatekar, Advocate holding for Shri V.D. Hon, Advocate for the appellants. Shri R.P. Dhase, Advocate holding for Shri A.H. Vaishnav, Advocate for respondents. ===== CORAM : R. M. BORDE, J. DATE : 3 rd August, 2009. PER COURT : 1 Appellants / original plaintiffs are raising exception to the judgment and decree passed in Regular Civil Appeal no. 271/95 by the 5 th Additional District Judge, Jalgaon thereby setting side the judgment and decree passed by the trial court on 5-12-1995. 2 Plaintiffs have instituted the suit claiming removal of encroachment to 2 the extent of 3 R alleged to have been committed by the defendants. It is claimed that the property bearing gat no. 770 belongs to the plaintiffs whereas the adjoining property bearing gat no. 771 belongs to the defendants. Defendants have committed encroachment to the extent of 3 R area over the land belonging to the plaintiffs. In order to substantiate their claim, the plaintiffs have examined the surveyor and placed on record the map in respect of measurement of the land gat no. 771. It transpires from perusal of the record that the surveyor has measured only one survey no. i.e. survey no. 771 belonging to the plaintiffs. Evidence in respect of encroachment alleged to have been committed by the defendants is not satisfactory. The first appellate court after scanning the evidence has recorded finding that the evidence lead by the plaintiffs is not sufficient to prove their case. It was incumbent upon the plaintiffs to get both the lands measured in order to establish encroachment alleged to have been committed by the defendants. In the absence of sufficient evidence, it cannot be said that the plaintiffs have established their case. The view adopted by the first appellate court is reasonable and based on proper appreciation of evidence placed on record. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 3 3 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa793.05.odt 4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 6318 OF 2009 IN SECOND APPEAL NO. 793 OF 2005 Shankar Zendu Bari (deceased through LRs) & others .. APPLICANTS VERSUS Sampat Sayaji Bari & others .. RESPONDENTS Shri V.B. Anjanwatekar, Advocate holding for Shri V.D. Hon, Advocate for the applicants. Shri R.P. Dhase, Advocate holding for Shri A.H. Vaishnav, Advocate for respondents. ===== CORAM : R. M. BORDE, J. DATE : 3 rd August, 2009. PER COURT : 1 This is an application for bringing on record the legal heirs of deceased appellant no. 5 who died on 23-1-2002. Applicants are also praying for condonation of delay of 2615 days occurred in approaching this court. 5 2 Heard learned counsel for the respective parties. For the reasons stated in the application, application deserves to be allowed and the same is accordingly allowed. Delay of 2615 days occurred in approaching this court stands condoned. Appellant nos. 5A and 5B are permitted to be brought on record as legal heirs of deceased respondent no. 5. Application stands disposed of. ( R. M. BORDE, J.) dyb/office/sa793.05.odt