1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : N A G P U R. SECOND APPEAL No. 399 OF 2005 WITH SECOND APPEAL No. 359 OF 2005 Mahadu s/o Rama Pawar & anr. -VERSUS - Kamlabai w/o Ranjit Singh Chandel & ors. .... Mr. J.Y.Ghurde Advocate for the Appellants in S.A. No. 399/0 Mr. S.U. Nemade Advocate for appellant in S.A. No.359/05. Ms. F.N.Haidari Advocate for the Respondent no.1 in both appeals. .... CORAM : A.B. CHAUDHARI, J. DATE : 16 th JULY, 2009. COURT’S ORDER : Heard learned counsel for rival parties. The first appellate court has reversed the finding of the trial Court in respect of defendants 1, 2 and 3 and confirmed the decree in respect of defendant no.4 for removal of encroachment. In support of both the appeals, Mr.Ghurde and Mr.Nemade argued that the map (Ex.107) was not proved in accordance with law and therefore the first appellate court could not have assumed that there was encroachment made by the present appellants. Further, 2 the area of field belonging to respondent/plaintiff was not the one claimed by the plaintiff and more area was sought to be shown as owned by the plaintiff. The cadestral surveyor who was examined did not issue notice to defendant no.4 Abhiman. Though son of Abhiman was present it cannot be said that there was proper service of notice prior to measurement. The surveyor did not measure all the fields in order to find out encroachment of the area owned by respondents/defendants and the plaintiff and therefore the impugned judgment and decree made by the first appellate court is liable to be set aside. In the alternative, Mr.Nemade argued that due to above deficiencies in the measurement the suit is required to be remitted once more. 2. Ms.Haidari, learned counsel for respondent no.1/plaintiff opposed the appeal and argued that appellant/original defendant no.1 in S.A. No.399/05 even did not file written statement or remain present for cross-examining the cadestral surveyor. She further argued that the map was duly exhibited without any objection. The appellate court in the earlier round had remitted the matter to the Civil Court for measurements and accordingly measurements were taken but no objections were raised to the report of cadestral surveyor and therefore it would be unjust to again remit the matter to the trial court to find out the correct measurement. 3 3. Mr. Nemade, learned counsel, argued that there is violation of findings of the appellate court’s judgment remanding the matter by the Cadestral Surveyor. 4. Having heard learned counsel for rival parties and having gone through the cross-examination of Cadestral Surveyor, I find that the entire evidence of Cadestral Surveyor has almost gone unchallenged and whatever is now contended before me in relation to the area owned by the plaintiff or defendants, nothing has been put to the Cadestral Surveyor in the cross-examination. It is not in dispute that none of the defendants filed any objection to the report of the Cadestral Surveyor on any of the grounds raised before me now. The defendants ought to have grabbed the opportunity of doing so when the first appellate court had in the earlier round remitted the matter to the trial court for fresh measurements. There is failure on the part of the defendants in not properly cross-examining the cadestral surveyor on all theses questions which are now raised before me and therefore the appellate court has recorded a finding of fact that the map (Ex.107) clearly shows encroachment made by various defendants. Map (Ex.107) has been duly proved in the evidence and the map shows encroachment made by respective defendants, to which there is no specific cross-examination. I, therefore, hold that the map was duly proved by the Cadestral Surveyor. 4 I, therefore, do not find that the findings of the appellate court or the directions of the appellate court have at all been violated. It was for the appellants to show to the trial Court what was the violation. That having not been done, it cannot be allowed to be done now. All these questions raised before me are the questions of facts which have been answered by the 1st appellate court. I do not find any infirmity with the judgment of the first appellate court. In the result, both the second appeals stand dismissed. No costs. JUDGE