1 S.A. 371 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 371 OF 2009 Sunanda W/o Vaijnath Bardale Appellant V E R S U S Khajamiyan S/o Jaleelkhan Gadiwan Respondents Mr. Gajanan Kadam, Advocate for the appellant Mr. M.B.W. Khan, Advocate for respondent CORAM : S.V. GANGAPURWALA, J. DATED : 9th March, 2011 PER COURT : 1. This is plaintiff’s Second Appeal. The plaintiff had filed a suit for recovery of possession of an encroached area of 2 Guntha land. The Trial Court dismissed the suit. The plaintiff preferred an appeal. Appellate Court also dismissed the appeal. The plaintiff has assailed the Judgment and Decree in the present Second Appeal. 2. Shri Kadam, learned counsel for the appellant submits that in fact the Courts below have not considered the case of the plaintiff in proper perspective, in as much as the plaintiff never claimed her ownership and possession over 37 R land. The plaintiff claimed that she is owner of 25R land and subsequently purchased 7R land. The 2 S.A. 371 of 2009 encroachment which was caused was over the 25R land which she purchased earlier and that is why there is no mention of 7R land purchased subsequently. According to the learned Counsel, the Courts below were swayed by the act, there is no reference of the 7R land in the pleadings, but then that would not cause any difference. The learned counsel further contended that the cadastral surveyor in his measurement map, has specifically shown encroachment of 2 Guntha land made by the defendant, that should have been relied by the Courts below. The defendant could not prove his right over the said 2 Guntha land. Shri Kadam, learned counsel alternatively submitted that if the measurement map was not inspiring confidence, then the matter be remanded back for fresh measurement, and for that appellant could be bear the charges. 3. Per contra Shri Khan, learned counsel for the respondent, submitted that both the Courts, on appreciation of evidence, have arrived at concurrent finding that no encroachment has been committed by the defendant. In fact, the plaintiff herself is in possession of an excess area of land which she is not entitled to. 4. With the assistance of learned counsel, I have gone through the judgments and the records. The plaintiff claimed his ownership on 25 3 S.A. 371 of 2009 R land in the pleading. Even if the case of the plaintiff is accepted that subsequently she purchased 7 R land then at that moment she would be entitled to 32 R land. But the cadastral surveyor found the plaintiff to be in possession of 37 R land. No explanation has been given by the plaintiff regarding excess area in her occupation. The arguments of Shri Kadam, learned counsel that the plaintiff is not claiming that excess area, cannot be considered due to lack of pleading or explanation before the Courts below. Further the Courts below have observed that the plaintiff has failed to prove exact location of her property in Survey No. 150/B/1. It is cardinal principle of Civil Jurisprudence that plaintiff has to stand or fall on his own. The defendant’s case need not be considered, as the plaintiff has failed to prove the case. The Courts below have rightly dismissed the same. 5. The judgments delivered by the Courts below are based on appreciation of evidence. There is no perversity in the appreciation. The view taken by Courts below is a possible view. The Second Appeal cannot be entertained only on the ground that some other view may be possible. 6. In the light of the same, Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to 4 S.A. 371 of 2009 costs. 7. In view of the disposal of the Second Appeal, Civil Application No. 12211 of 2008 does not survive, and the same is disposed of accordingly. ( S.V. GANGAPURWALA, J ) SDM*371.09SA/090311