1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 163/2009 WITH CIVIL APPLICATION NO. 329/2009 (Sitaram s/o Vithoba Dhande (Dead) Through Tulshiram s/o Sitaram Dhande and others vs. Daulat Sago Dhande ) ------------------------------------------------------------------------------------------- Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Mr C J Sukhdeve, Adv.for appellants Mr. A.K. Bangadkar, Adv.for Respondent Coram : A.P.BHANGALE, J. Dated : 10 th November, 2009 Heard learned counsel for the respective parties, at length. 2. By this Second Appeal filed under section 100 of the Civil Procedure Code ( in short “CPC”), the appellants -legal representatives of original defendant -Sitaram Vithoba Dhande, who died during pendency of this proceedings, leaving behind as many as seven legal representatives-appellants herein} are seeking to challenge the validity and legality of the impugned judgment and order passed in Regular Civil Appeal No.480/1984, which was dismissed by learned Ad-hoc District Judge-8, Nagpur, on 26.8.2008. 3. The facts of the case in brief are : That Regular Civil Suit No. 142/1977 was instituted in the Court of learned Civil Judge Junior Division, Umred by Daulat Sago Dhande, with prayer for direction to defendants Sitaram Vithoba Dhande to deliver possession 2 of suit land encroached upon by the defendant which he had refused to part with in favour of the plaintiff. According to plaintiff he owns agricultural filed Gut No.13 admeasuring about 4.51 acres; and another agricultural land bearing Gut No.67 admeasuring 1.47 acres at Mouze Sawargaon Tq. Umred, Dist. Nagpur. The defendant Sitaram Dhande is adjoining agricultural land owner bearing Gut No. 16 and 66. The plaintiff pleaded that the defendant had encroached upon the area 0.12.50 hectors out of Gut No.67 and 0.8.75 hectors out of Gut No.13. According to the plaintiff, he got the field Gut Nos. 13 and 67 measured by Amin (Surveyor ) and a map was prepared accordingly, indicating encroachment by the defendant in the lands belonging to the plaintiff. The plaintiff further pleaded that despite oral requests to the defendant, the defendant did not remove the encroachment. As such, notice was issued to the defendant on 13.7.1977 calling upon him to leave the possession of the land encroached upon by the defendant and to deliver it back to the plaintiff. Thus, on the ground that defendant was in wrongful possession of the suit land and had refused to vacate the land which was encroached upon, suit was filed by the plaintiff for possession thereof as also for relief of damages, mesne profit and costs of the suit. The suit was decreed by the trial Court i.e. learned Civil Judge, Jr.Dn. Umred by judgment and order dated 11 th April,1984. Thus the defendant was ordered to deliver possession of the encroached lands to the plaintiff. Further order was made regarding damages payable by the defendant to the plaintiff and also enquiry into the future mesne profits. 4. The said judgment and order passed in Regular Civil Suit No. 142/ 1977 was subject-matter of challenge before the District Judge at Nagpur. It appears that the plaintiff- Sitaram Dhande since died during pendency, was represented by seven legal heirs as appellants. The appeal u/s 96 of the CPC made before the learned Ad- 3 hoc District Judge -8 Nagpur was dismissed on 26.8.2008. Thus, in the Second Appeal under section 100 of CPC, the appellants are seeking to challenge the validity, legality and propriety of the above concurrent judgments. 5. Learned Advocate for the appellants in support of the appeal, contended that the Surveyor concerned ought to have issued legal notice to the defendant before actual measurements of land. It is also sought to be argued that in the first measurement by Surveyor no encroachment was found and that first measurement was suppressed and without service of legal notice to the defendant, second measurement was carried out in which the Amin (Surveyor ) concerned has shown encroachment on the land and, therefore, it is further contended that there is substantial question of law regarding legality of the measurement of land as it was done without notice to the defendant. 6. Further contention made on behalf of the appellant is that there was a nullah going through the suit fields and the Government marks are washed away, therefore, the Surveyor should have taken help of the concerned Patwari of the village for the purposes of actual measurement. 7. Opposing these contentions vociferously, the learned Advocate for the respondent (Original plaintiff) referred to Paragraph 9 of the the judgment and order sought to be impugned, wherein the First Appellate Court observed as follows :- “According to Daulat, he called the surveyor for measurement of lands in question and the measurement was conducted in the presence of both sides parties. The copy of map prepared 4 by the Surveyor is produced vide Exh.29 and the notice which is said to be served to the appellant is at Exh.30 along with acknowledgment vide Exh. 31. According to PW 1 Daulat, even after the issuance of notice, appellant did not vacate the land nor removed encroachment from his land, so he was constrained to file suit. According to him, yearly net yield of the field was Rs. 200/- to Rs. 250/-. PW 3 Shyamrao Nikose stated about the measurement done by him on 25.2.1976 by applying plain-table method in the original measurement record and the original measurement record was brought in the Court in order to prove the contents of certified copy of the map vide Exh.29. According to PW 3, notice was also sent to appellant-Sitaram and that notice is available in the record of measurement and according to him, thumb impression of appellant was also obtained on that notice.” This appears to be finding of fact, which was consistent with the observations made by the trial Court. The trial Court also found that defendant had encroached upon the lands belonging to the plaintiff as indicated in the plaint map and ordered possession as well as damages and mesne profit. The evidence of Surveyor was discussed in paragraph 7 in the judgment of the trial Court that Shri Nikose, a Govt. Surveyor examined at Exh.39 had measured the plaintiff’s field as per plain-table system on 25.2.1976 and the defendant had made encroachment on the lands belonging to the plaintiff as indicated in the map Exh.29. The trial Court also concluded that it did not find any material to disbelieve measurement and the map drawn by Surveyor. 5 8. It is also pertinent to note that original defendant -Sitaram Vithoba Dhande expired during pendency of the proceedings after the suit was decided as appellants before the first Appellate Court are his legal heirs. It is open for the legal heirs to move the Competent Survey authority of the Government in order to get re-measurements to their satisfaction, if according to them, the measurement earlier done were not correct. Having regard to the question of fact regarding measurement of land by surveyor it is certainly open for appellants herein as legal heirs inheriting the lands belonging to Sitaram ( original defendant ) to get the re-measurement by a competent Govt. Surveyor. 9. Considering that there were concurrent findings by the trial Court as well as first Appellate Court as also necessity to avoid prolonged litigation between the parties, particularly bearing in mind that original defendant-Sitaram is no more living, the plea that he was not served with legal notice before the measurement is of little consequence while considering in juxtaposition the concurrent findings by the Courts below. I think it would not be open for this Court in exercise of power u/s 100 CPC once again to investigate the ground on which the findings were arrived at by the Courts below. It would not be justifiable for this Court in the absence of substantial question of law to entertain the Second Appeal. The question of law must have substance. It is only when substantial question of law is fairly arguable, where there is room for difference of opinion and it is necessary to discuss alternative views to determine them, which must have been formulated with the memorandum of appeal. A right of appeal is neither natural nor inherent right attached to the litigation. Being substantive statutory right u/s 100 CPC, it has to be regulated according to law in force. The conditions as above are required to be strictly complied with before the Second appeal can be 6 entertained. The findings of fact recorded by the trial Court as well as first Appellate Court which have attained finality can not be disturbed lightly unless there are sufficient and cogent reasons. 10. For the reasons mentioned herein-above, no interference is required in the impugned judgments and orders is called for. Second Appeal is dismissed at the admission stage. 11. Civil Application No.329/2009 does not survive. The same is also disposed of. JUDGE. sahare