1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No.184/2007 Shri Laxman s/o Vithobaji Kamathe (dead) through L..R's Smt. Leela w/o Laxmanrao Kamthe and 3 others Vs. Shri Harishchandra s/o Jethuji Chamat (dead) through L.r;s (Smt. Pramila wd/o Harishchandra Chamat and 2 others. ----------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's order Judge's orders and Registrar's order ------------------------------------------------------------------------------------------------------------ Coram : A.P. Lavande, J. Dated : 17th February, 2009. Heard Mr. Rai, Adv. holding for Mr. Daruvala, learned counsel for the appellant. This second appeal is directed against the judgment and decree dated 23rd June 2006 passed by Adhoc Additional District Judge, Nagpur, allowing Regular Civil Appeal No. 416/1994, preferred by the respondents against the judgment and decree dated 30.6.1994 passed by Civil Judge, Jr. Dn. Kuhi in Regular Civil suit No. 195/1994. The appellants filed the above suit against the respondents seeking declaration, mandatory injunction and possession on the ground that the defendant had encroached to the extent of 336 sq. ft. in the property of the plaintiff. The trial Court, upon appreciation of the evidence led by the parties, decreed the suit. In appeal preferred by the 2 respondents, the lower Appellate Court held that the plaintiffs had not identified the suit property and not proved the exact encroachment by the defendants and consequently, allowed the appeal filed by the respondents. Mr. Rai, learned counsel for the appellants submitted that the lower Appellate Court was not justified in reversing the finding given by the trial Court, which were based upon proper appreciation of the evidence on record. He further submitted that the lower Appellate Court ought to have appointed the Commissioner to find out the encroachment, if it was not inclined to accept the case set up by the appellants-plaintiffs in support. In support of this submission, reliance has been placed upon the judgment of this Court in the case of Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade : 2004 (2) Mh.L.J. 722. Having heard learned counsel for the appellants and having perused the record, I am of the considered opinion that no case is made out for interference with the impugned decree by the appellants in the appeal. The lower Appellate Court was perfectly justified in holding that the appellants had not been able to establish the exact area of the encroachment by proving title to the encroached portion. This finding, in my opinion, is based upon proper appreciation of the evidence on record and, 3 therefore, no case is made out for interference by this Court. Insofar as the authority relied upon by the appellants, the same does not advance the case of the appellants. At any point of time earlier the appellant had not sought appointment of the Commissioner to identify the encroached portion. In any case, no substantial question of law is involved in the appeal. Hence, the appeal is rejected. JUDGE Ambulkar.