1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.242 OF 2009 MADHAV RAMKRISHNA WADEKAR ..Appellants Versus TUKARAM DHONDIBA MANDLIK.. Respondents ... Advocates appearing for : Appellants: Shri P.D.Bachate h/f Shri R.B.Raghuwanshi and Respondent : Shri S.T.Shelke. ... CORAM : R.M.BORDE, J. Dated : 1.9.2009 PER COURT :- 1. It is an appeal by the original plaintiff raising an exception to the judgment and decree passed by the learned Additional District Judge, Sangamner in Regular Civil Appeal No.149 of 2000 (Old No.207 of 1991) dated 27.9.2000, whereby, the first appellate Court, while allowing the appeal, has quashed and set aside the judgment and decree passed by the learned Joint Civil Judge J.D. Sangamner, in Regular Civil Suit No.120 of 1983, dated 22.1.1991. 2. The plaintiff states that the defendant is adjacent land holder of the plaintiff. It is contended that the plaintiff got his land measured in 1976 and during the measurement, it transpired that the defendant has committed an encroachment to the extent of 8 Ares on the land of the plaintiff. The plaintiff, as such, presented the suit claiming recovery of encroached area, in the year 1983. 2 3. The plaintiff has placed reliance on the measurement conducted by Surveyor PW 3 Laxman. This witness has stated in his deposition that the original record pertaining to the measurement is not available and the same has been destroyed. In the cross examination, this witness has specifically stated that he has not conducted the measurement of land S.No.29. Thus, in absence of the original record in respect of the measurement of the property as well as in absence of measurement of land S.No.29, the first appellate Court was justified in turning down the evidence of PW 3 Laxman. The defendant has contended before the first appellate Court that during pendency of proceeding both lands were got measured by the defendant through one Cadestral Surveyor - DW 2 Roopchand and it transpired during the measurement that there was no encroachment committed by the defendant. 4. Considering the totality of the circumstances, the first appellate Court has reached a conclusion that the plaintiff has failed to establish his case. If the evidence of PW 3 Laxman is left out of consideration and that too for the reasons recorded in the judgment of the first appellate Court, there is no other evidence to substantiate the case of the plaintiff as regards the encroachment alleged to have been committed by the defendant. The first appellate Court, on appreciation of the evidence has recorded a finding against the plaintiff. The reasons recorded by the first appellate Court appear to be proper. The contentions raised in the appeal are essentially the matter relating to appreciation of the evidence. No substantial question of law arises for consideration in the present appeal. 3 5. In the result, the Second Appeal stands dismissed. No order as to costs. (R.M.BORDE, J.) ... akl