1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 70 OF 2009 Shri Atmaram Thakoji Raut ... Appellant (Or. Plaintiff) v/s Shri Santosh Digambar Poyekar & anr. ... Respondents Mr.S.D.Dharmadhikari for the appellant. Mr.Bhushan Walimbe i/by Preeti Walimbe for respondent Nos.1 and 2. CORAM: SMT.NISHITA MHATRE, J. DATED: 7TH OCTOBER, 2009 P.C.: 1. The second appeal has been filed against the order of the District Judge, Sindhudurg in Regular Civil Application No. 180 of 2006, dated 25.9.2008. By this order, the appellate Court has confirmed the order of the Trial Court passed in Regular Civil Suit No. 6 of 1994, on 30.9.2004. 2. The dispute arising in the suit is, whether the defendant has encroached upon the land of the plaintiff. 2 According to the plaintiff, the defendant has built a structure by encroaching upon the land which is owned by the plaintiff. It is in these circumstances that the suit was filed by the plaintiff for a mandatory injunction against the defendants and for removal of the defendants’ structure. 3. On the basis of the evidence on record, both the Courts below have found that there is no encroachment on the part of the defendants. They have found that there is a rain water channel which flows between the property of the appellant and the defendants i.e. to the West of the appellant’s property. The sale deed in favour of the appellant, under which he purchased the suit property, indicates that a part of the land i.e. 0.06 Gunthas on the extreme western side of the property was not sold to the plaintiff under the sale deed. In fact, it is specifically mentioned that this land namely 0.06 gunthas is reserved for the rain water and other waste water to pass through it and, therefore, it was not being sold to the plaintiff. 4. Both the Courts below therefore held that there is no encroachment by the defendants on the plaintiff’s property in view of the fact that there is a water channel between the properties. Further more, the appellant has admitted that he 3 has fenced his property. However, he has stated that he has not fenced it according to the boundaries of the property. Even if this statement of the appellant is accepted, in my opinion, the very fact that there is a water channel between the properties of the plaintiff and the defendants, cannot be obliterated in view of the recitals in the sale deed under which the property has been sold to the plaintiff i.e. the appellant herein. There is no material to indicate that any encroachment has occurred beyond the plaintiff’s fence. 5. In these circumstances, I find that there is no reason to interfere with the concurrent findings of fact recorded by both the Courts below that the defendants have not encroached upon the plaintiff’s land. 6. No substantial question of law arises in this second appeal for this Court to consider under Section 100 of the Code of Civil Procedure. 7. Second appeal dismissed. ..... 4