: 1 : sa157.10 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 157 OF 2010 Baban Davdu Darvesh & Anr. ... Appellants. vs. Sanju H. Darvesh & Anr. ...Respondents Mr. Sanskar Marathe, Advocate for Appellants. Mr. Shankar S. Deshmukh i/b. Mr. Sanjeev J. Rairkar, Advocate for Respondent No.1. CORAM: G.S.GODBOLE, J DATED : AUGUST 12 & 20, 2011 P.C. 1. Heard Mr. Marathe, Advocate for Appellants and Mr. S.S. Deshmuk holding for Mr. Sanjeev J. Rairkar, Advocate for Respondent No. 1. 2. Original Plaintiffs in R.C.S. No. 2807 of 1999 have filed this Appeal being aggrieved by the Judgment and Decree dated 6/9/2003 passed by the learned IVth Joint Civil Judge, Junior Division Pune, thereby dismissing their suit seeking mandatory injunction for demolition of the construction made by the Defendant No. 1 which was alleged to be unauthorised. In the : 2 : sa157.10 trial Court, the sanctioned plan/development permission issued by the Defendant No. 2 Local Authority was produced at Exh. 41. No application for appointment of Court Commissioner was filed in the trial Court nor any application for producing copy of the Judgment and Decree in Special Civil Suit No 35 of 1959, on which reliance was placed by the Plaintiffs, was filed. Civil Appeal No. 530 of 2004 filed by the Appellants has been dismissed by the learned District Judge-10, Pune by the impugned Judgment and Order dated 7/8/2009 and, simultaneously, the learned District Judge has also dismissed Application Exh. 10 which was filed in the Appeal under Order 41 Rule 27(aa) of the Code of Civil Procedure, 1908 seeking production of certified copy of the Judgment in Special Civil Suit No. 35 of 1959. The District Judge has recorded a finding that the Applicants had specifically referred to the earlier Suit inthe Plaint and hence a case for production of additional evidence was not made out and on that basis Application Exh. 10 was dismissed. 3. I have perused the Application Exh. 10 which had sought to produce certified copy of the Judgment and Order of the Special : 3 : sa157.10 Civil Suit No. 35 of 1959. The learned Advocate Mr. Marathe fairly states that the certified copy of the Judgment was not produced but what was sought to be produced was the report of the Court Commissioner appointed in Special Civil Suit No. 35 of 1959, which Commissioner was appointed by the Preliminary Decree dated 21st March, 1960. He fairly states that the report of the Court Commissioner reproduces the Judgment delivered at the time of passing preliminary Decree, and that though the report suggests allotment of different house properties to the parties to the said suit, there is nothing on record to indicate as to whether the said report of Court Commissioner was accepted and a final Decree was passed or as to how the different suit properties were allotted to the parties in the said suit. The photocopy of the Application Exh. 10 and the copy of the report of the Court Commissioner are taken on record and marked as “X” and “X-1” respectively. Thus, the learned Advocate for the Appellants, despite his elaborate argument, is unable to show as to how the said judgment would reveal that a particular portion of the suit property had been allotted to the predecessor in title of the Appellants. In view of this, even if the Application Exh. 10 was to be allowed by the learned District Judge, that may not : 4 : sa157.10 have made any difference as far as ultimate outcome of the Appeal is concerned. 4. The learned Counsel for the Appellants placed reliance on the judgment of the learned Single Judge (S.T.Kharche, J) in the case of Kashinath Chindhuji Shastri vs. Haribhau Nathuji Bawanthade reported in 2004(2) Mh. L. J. 722 in support of his submission that in case of a dispute regarding removal of encroachment the Court can appoint a Court Commissioner suo motto. The said Judgment is in the context of provisions of section 83 of the Indian Evidence Act, 1872 where a map drawn by the Public Authority is sought to be relied upon. In the present case, no such map was either produced or sought to be relied upon nor any Application for appointment of Court Commissioner was made. Hence, this Judgment will be of no assistance to the learned Counsel for the Appellants. 5. The findings recorded by the Courts below are mere findings of fact. No substantial question of law arises. The Second Appeal is therefore summarily dismissed. : 5 : sa157.10 (G.S.GODBOLE, J.)