1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.985 OF 2006 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 15.03.2011. 1. Heard. 2. This is plaintiffs' Second Appeal. The plaintiffs had filed a suit for recovery of possession of an encroached area. The trial Court decreed the suit and directed the defendant No.3 to hand-over possession of 10 Ares land to the plaintiffs. The defendant No.3 preferred appeal. The appellate Court allowed the appeal, setting aside the judgment and decree passed by the trial Court. Being aggrieved by the same, the plaintiffs have filed the present Second Appeal. 3. Mr.Deshmukh, learned counsel for the 2 plaintiffs submits that the plaintiffs had deposited the amount as directed by this Court earlier but subsequently the office of the DILR asked to deposit further amount. Just because the same is not deposited that would not come in the way of the plaintiff inasmuch as they can recover the said amount from the plaintiffs, even by resorting to the provisions of Maharashtra Land Revenue Code. The learned counsel further contends that the trial Court on appreciation of evidence of the Cadastral Surveyor had decreed the suit. The lower appellate Court without considering the said evidence has reversed the said finding arrived at by the trial Court. Mr.Deshmukh, learned counsel contends that the lower appellate Court has not come within the close quarters of the reasoning arrived at by the trial Court while reversing the finding of the fact. 4. Per contra, Mr.Dalal, learned counsel for the Respondent No.1 submits that the lower appellate Court has properly considered the fact that the plaintiffs could not prove the said encroachment in view of the evidence of the 3 Cadastral Surveyor Haribhau Gore, who has deposed that no encroachment is found. 5. I have gone through the judgments passed by the Courts below. Two Surveyors had measured the land i.e. Mr.Manolikar and Mr.Gore. It has come on record in the evidence of Mr.Gore that after he measured the land, it can not be said that defendant No.3 has encroached over the land of the plaintiffs. It has been found that the plaintiffs even after remand did not make an attempt to get the measurement map proved. In light of the above, the Court could not have arrived at conclusion about the said encroachment. 6. The Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.15.03.2011. asp/office/sa985.06 4