1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.220 OF 2002 WITH CIVIL APPLICATION NO.313 OF 2002 Gulabrao Vithoba Kuchekar (Since deceased through his legal heirs) Narmada Gulabrao Kuchekar & Ors. .. Appellants V/s. Hindurao Mahadeo Kuchekar & Ors. .. Respondents Mr.M.D.Modgi i/b. S.M.Oak for the Appellants/Applicants. None for the Respondents. CORAM : R.M.SAVANT, J. DATED : JULY 30TH, 2008. P.C. This Second Appeal arises out of the Judgment and decree dated 12th July, 2001 passed by the learned 1st Ad-Hoc Additional District Judge, Satara. By the said Judgment and decree, the 2 Judgment and decree passed by the Trial Court in Regular Civil Suit No. 108 of 1993 was set aside. 2. The Appellant herein is the original Defendant in the said Regular Civil Suit No.108 of 1993 filed by the Plaintiff i.e. Respondent No.1, herein for removal of encroachment over the suit land bearing Gat No.89 and for possession of the encroached area and for mesne profits. Both the Plaintiffs and Defendants claim their linage to one Rauba. The Case of the Plaintiff is that pursuant to the partition that took place in the year 1930, the land Gut No.89 came to his share and the land Gat No.90 went to the share of the Defendant No.1. It is further the case of the Plaintiff that the Defendant No.1 has encroached upon the area of 25R on the eastern side of the said land Gat No.89. It is the case of the Defendant No.1 that Gat No.90 came to his share in the partition that took place in the year 1930 and that the alleged encroached portion is infact in the area which has came to his share. 3 3. The parties went to Trial and the Trial Court on the basis of the material that was before it dismissed the said suit. The Trial Court held that the Plaintiff had failed to prove that the Defendants had encroached upon the land of the Plaintiff. The Trial Court also came to a conclusion that the Defendants failed to prove that the partition had taken place in the year 1930. The Trial Court also took into consideration the report of the Court Commissioner wherein the encroached portion was shown in blue colour. However, relying upon the evidence of the Court Commissioner, wherein the Court Commissioner has stated that he was not sure whether the portion as shown in the Map is either of encroachment or of sub division. The Trial Court principally on the ground that the Plaintiff could not satisfy on what basis he acquired the said Gat No.89 came to a conclusion that the Plaintiff had not proved his title over the land allegedly encroached by the Defendant. The Trial court therefore did not deem it fit grant any relief to the said suit and dismissed the suit. 4. Aggrieved by the dismissal of the said suit, the Plaintiff filed Regular Civil Appeal No.158 of 1982. The said Regular Civil 4 Appeal as indicated above allowed and the Judgment and the order of the Trial Court came to be set aside. The Lower Appellate Court, on the basis of the revenue record in the form of 7 X 12 extract, wherein the Plaintiff has shown as owner of Gat No.89, the Khate Extract recorded a finding that the Plaintiff was the owner of the said Gat No.89 admeasuring 1 Hector and 25 R. 5. The Lower Appellate Court on the basis of the admission of the Defendant No.1 in his written statement, held that the said Gat No.89 had come to the share of the Plaintiff in the partition that took place in the year 1930. In so far as the case of the Defendant No.1 that the disputed land had come to his share was concerned, the Lower Appellate Court recorded a finding that considering the conduct of the Defendant No.1 wherein he has taken no steps to get the said area recorded in his name. It could not be held that the said portion had come to his share in the partition that had taken place in the year 1930. The Lower appellate Court on the basis of the evidence of the surveyor Shri.Sahebrao Bhosale whose evidence 5 reveals that the land was measured on 7th July, 1993 on which date, the Plaintiff, the deceased Defendant No.1 and others were present at the time of measurement and pursuant to which measurement it was revealed that the owner of Gat No.90 that is the Defendant No.1 had encroached upon Plaintiffs land No.89 to the extent of 25 R came to a conclusion that the Defendants have encroached upon the said suit land which is shown in blue colour in the map prepared by the surveyor. The Lower Appellate Court further held that since the Defendant No.1 had failed to prove his title and ownership in respect of the suit land, the Defendant had no right to retain possession of the suit land and directed that the possession of the said encroached area of 25R be handed over to the Plaintiff. The Lower Appellate Court has also quantified the mesne profits at Rs.1,500/- for the period of three years since filing of the suit taking into consideration the nature of the crops grown of the suit land. The Lower Appellate Court on the basis re-appreciation of the evidence had arrived at the said conclusions. In my view, the findings arrived at by the Lower Appellate Court cannot be faulted with. The challenge raised in the 6 Second Appeal does not involve any substantial question of law. 5. The Second Appeal is, accordingly, dismissed. 6. In view of the dismissal of the Second Appeal, the Civil Application No.313 of 2002 does not survive and is disposed of accordingly. [R.M.SAVANT, J.]