1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No. 92/2000 ------------------------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ------------------------------------------------------------------------------------------------- CORAM : A.P. Lavande,J DATE : 19th September, 2006 Heard Shri Dhoble, learned counsel for the appellant and Shri M. B. Naidu, learned counsel for the respondent. 2. This Second Appeal is directed against the Judgment and order dated 23rd August, 1999 passed by the District Judge, Nagpur in Regular Civil Appeal No. 531/93 dismissing the appeal filed by the appellant against the Judgment and decree dated 27.4.1993 passed by the Civil Judge, Jr. Dn., Ramtek in Regular Civil Suit No. 79/79. The plaintiff – respondent filed the above suit against the appellant-defendant seeking eviction of the defendant from the portion 'ABCD' as shown in the plaint map admeasuring about 840 sq. ft. forming part of the property bearing Survey Nos. 180/3 and 187/2. The plaintiff also claimed damages and mesne profits. The suit was contested by the defendant on various grounds. The trial Court after appreciating evidence led by the parties held that the plaintiff has proved his case and consequently decreed the suit. The 2 appellate court dismissed the appeal filed by the defendant holding that the findings recorded by the trial court were correctly recorded and the defendant has not been able to prove his defence. In second appeal preferred by the appellant, this Court by order dated 4th December, 2003 appointed surveyor from the office of Taluka Inspector of Land Records, Parseoni to carry out measurements of the property of the plaintiff and the defendant and directed the Commissioner to submit report along with the map. The Commissioner submitted report along with the map. The report of the Commissioner as well as the map annexed thereto disclose that there is an encroachment on the property of the plaintiff by the defendant. However, the exact area of encroachment has not been mentioned. It is pertinent to note that the appellant did not accept the report of the Commissioner. 3. Mr. Dhoble, the learned counsel for the appellant submitted that the plaintiff- respondent has miserably failed to prove his title to the property bearing Survey Nos. 180(3) and 187 (2) and that the defendant had encroached on his property. According to the learned counsel, the plaintiff failed to prove the title of the vendor who had sold the property to the father of the plaintiff. According to the learned counsel, the findings recorded by both the courts below are contrary to the evidence on record and in the absence of any cogent 3 evidence having been led by the plaintiff the claim of the plaintiff ought to have been dismissed by both the courts below. In so far as the report and map submitted by the Commissioner is concerned, the learned counsel submitted that the same cannot be relied upon in the absence of exact area having been mentioned in the report and the map. He further submitted that this is a fit case in which the decrees passed by both the courts below deserve to be quashed and set aside and the matter to be remanded back to the trial court for fresh decision on merit. In support of his submissions, the learned counsel relied upon the following judgments. i) Kisan Lal Maniklal Rathi vs. Dinkar Yashwant Patil (2004(1) Mh. L. J., 138). ii) Kashinath Chindhuji Shastri vs. Haribhau Nathuji Bawanthade, ( 2004 (2) Mh. L. J. 722). 4. Per contra, Mr. Naidu, the learned counsel for respondent submitted that the learned trial court has rightly given findings about the title of the plaintiff to the suit property and about encroachment made by the defendant to the extent of 840 sq. ft. in terms of the plaint map. He further submitted that the sale-deed produced by the plaintiff clearly proves the title of the plaintiff to the suit property bearing Survey nos. 189(3) and 187(2). He further urged that the plaintiff has discharged his burden of proving that he has title to the 4 suit property and that there is encroachment by the defendant in the suit property. He lastly urged that there are concurrent findings of fact recorded by both the courts below and, therefore, no interference is called for in the second appeal. 5. I have considered the submissions made by the learned counsel for the parties. I have perused the records as well as the Judgments relied upon by the learned counsel for the appellant. In my opinion, the trial court as well as the appellate court upon proper appreciation of the evidence oral and documentary led by the parties have correctly come to the conclusion that the plaintiff has proved his title to the suit property and that the defendant has encroached in the suit property. The findings recorded by both the courts below are borne out from the evidence on record and, therefore, cannot be said to be perverse. No doubt, the Commissioner in his report and the map has not mentioned the exact area of encroachment but it is pertinent to note that the report as well as the map clearly establish that there has been encroachment as shown in the map annexed to the report. That being the position, I do not find any ground to set aside the decrees passed by both the courts below and remand the matter back to the trial court as urged by the learned counsel for the appellant. In the present case, this Court appointed the Commissioner who has submitted the 5 report and map which also disclose that there has been encroachment on the property of the plaintiff. In view of this position, the Judgments relied upon by the learned counsel for the appellant do not advance the case of the appellant. In my opinion, the findings recorded by both the courts below cannot be said to be perverse warranting interference in second appeal considering the entire evidence led by the parties as well as report and map submitted by the Commissioner appointed by this court. I do not find any ground to interfere with the impugned Judgments and decrees. In any event, no substantial question of law is involved in the present appeal. Hence, the appeal is rejected with no order as to costs. At this stage, Mr. Dhoble, the learned counsel for the appellant seeks continuation of interim order for a period of four weeks in order to enable the appellant to move the apex Court. In the interest of justice interim order granted by this court is continued for the period of four weeks. Judge patle