1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.783 OF 2009. Vishwanath S/o Umaji Garudi ... Appellant. Versus Bhimrao S/o Munjaji Jintalwad and others ... Respondents. ... Mr.M.M.Patil (Beedkar), advocate for the appellant. Miss. S.S.Adkine, advocate holding for Mr.S.K.Adkine, advocate for the Respondent No.1. ... CORAM : V.R.KINGAONKAR,J. Date : 04.11.2009. PER COURT 1. This Second Appeal is preferred by the original defendant. 2. Heard learned counsel. Adjournment was 2 sought on behalf of the Respondents because Mr.Adkine, advocate has gone out of Station. Request rejected. 3. The suit of the Respondents for removal of encroachment (Vide RCS No.135/1986) came to be decreed and the present appellant was directed to deliver possession of encroached 26 Ares land. It is pertinent to notice that the appellant had already ventilated grievances in the earlier round of litigation as regards the manner of measurement. In previous round of litigation, this Court held that lopsided measurement of the plaintiff's land was improper and, therefore, this Court allowed the Second Appeal No.505/2004 with direction that DILR to carry out the measurement. After the measurement report was received, an objection was raised to the effect that accuracy thereof deserve testing through cross-examination of the DILR. The matter was, therefore, remanded by this Court with liberty to call the measurer as a witness and make him available for the cross-examination. Again the DILR was examined and thereafter the suit was 3 decreed. 4. Mr.M.M.Patil (Beedkar), would submit that the first appellate Court committed patent illegality while passing the decree inasmuch as the objections regarding improper measurement have not been dealt with. He submitted that points for consideration are not properly erased by the first appellate Court. He invited my attention to certain observations in "Shri Bernard B.Gomes Alias Peter G.Gomes and others Vs. Smt.Prescilla Lopes E. Fernandes and others" (1999) Vol. 101(1) Bom. L.R. 378. He contended that the judgment of the first appellate Court is not in keeping with the provisions of Order 41 Rule 31 of the C.P.C. He also invited my attention to certain observations in "Janardan Nago Patil Vs. Ramanand Ramdas Mishra" 2003 (4) Mh.L.J. 853, a Single Bench of this Court held that the first appellate Court is duty bound to frame the necessary points for deciding the appeal as per provisions of Order 41 Rule 31 of the C.P.C. 4 5. On perusal of the impugned judgment, it is amply clear that the necessary points were raised by the first appellate Court. It is true that the first appellate Court did not raise the point, specifically as to whether the manner of measurement is legal and proper. However, that was not necessary. Such an objection could be decided during course of discussion. The first appellate Court seems to have duly considered the version of PW 1 Shivaji Wahule, who carried out the measurement. The version of PW Shivaji indicated that joint measurement was carried out and then the appellant was found to have encroached on 26 Ares land from eastern side of the plaintiff's land. The measurement map was prepared as per directions of this Court. The objection raised by the appellant was that because of standing crop of sugarcane in both the fields, PW Shivaji could not have measured the lands in question as the plain table method was inapplicable. He was asked about the standing crops. It appears that he admitted that in some part of the land of the appellant, there was standing crop of sugarcane. However, there is no 5 admission to the effect that he was unable to measure the lands due to such kind of crop in some portion. The finding of fact as rendered by the Courts below is concurrent. It is well settled that even if there is some mistake committed by the Courts below in appreciation of the evidence then also the Second Appeal would not be maintainable inasmuch as it does not involve any substantial question of law as such. The present appeal does not come within the ambit of Section 100 of the C.P.C. The Second Appeal is, therefore, dismissed in view of "Mahaboob Vs. Maktumsab" 2008 AIR SCW 2230. (V.R.KINGAONKAR,J.) asp/office/sa78309