1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 268 OF 2007 (Shri Kanhu Baban Gawande & Ors. vs. Totaram Amruta Nawalkar & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 06, 2009. Heard Shri Khorgade, learned counsel for the appellants – original plaintiffs and Shri Chandurkar, learned counsel for respondents No. 1 & 2. There is no appearance for respondents No.3(a) to 3(e) and 3(g) and 4, though they are served. Shri Khorgade, learned counsel has strenuously tried to contend that lower appellate Court has erroneously refused to accept the evidence of measurer. According to him, the measurer has utilised plain-table method and therefore in view of the method adopted, it was not essential for him to mention the land or areas beyond the boundary limit fixed by him. He has invited attention to said evidence and he has also invited attention to questions of law as formulated. According to him, defendants No. 1 & 2 were the immediate adjacent neighbours and as defendants No. 3 & 4 have 2 encroached upon their land, they consequentially occupied the land of the appellants and hence there was encroachment on the land of the appellants. He further states that though initially suit was for encroachment against defendants No. 1 & 2, after measurement when the mistake was discovered, in order to put an end to the controversy once for all, the amendment was carried out and defendants No. 3 & 4 were also added. Shri Chandurkar, learned counsel states that there is no dhura in between fields of defendants No. 3 & 4 and hence the case of encroachment by them is not supported. He relies upon the observations made by lower appellate Court in paras 15 and 16 to contend that no substantial question of law arises in the matter. The perusal of paras 15 and 16 of the judgment of lower appellate Court clearly reveals that evidence of measurer could not have been relied upon by the trial Court. The said measurer has not accepted in cross examination that he has measured entire survey number 69. It appears that road of about 30 feet width was also going through these lands and it was also not taken into account by him. By reading the observations made by the lower Court, it has been brought to my notice that the 3 reference to unit of measurement made by the lower appellate Court is erroneous and road is 30 meters wide. The circumstances are, therefore, relevant and show that lower appellate Court was justified in not relying upon the evidence of measurer. The view reached by lower appellate Court in view of its findings in paras 15 or 16 are not shown to be either erroneous or perverse. No substantial question of law, therefore, arises in this Second Appeal. It is dismissed. However, there shall be no order as to costs. JUDGE *GS.