1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 78 OF 2008 Bharatlal Koyaliram Gangotri vs. Jammanlal Tonda Gangotri & Anr. 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. APRIL 01, 2008. Heard Shri Lakhanikar, Advocate for the appellant/ plaintiff. This is a Second Appeal by the plaintiff, challenging the reversing appellate Court judgment. The suit before the trial Court was for removal of encroachment and possession with contention that a piece of land admeasuring 20' x 17' was purchased and respondents – defendants, who were relatives of appellant/ plaintiff, encroached upon 170' portion out of it. The trial Court has decreed the suit. The appellate Court has dismissed the suit. Shri Lakhanikar, Advocate contends that when the measurements conducted by the Commissioner, which were in fact accepted and acted upon in the earlier litigation by the parties, were found to be defective by the lower appellate Court, the appellate Court ought to have ordered issuance of fresh commission in view of the powers 2 available to it in view of Order 26 Rule 9 of Civil Procedure Code. He contends that even this Court at this stage is competent to order such commission and he relies upon the judgment of learned Single Judge of this Court in the case of Kisanlal Maniklal vs. Dinkar Yashwant, reported at 2004 (1) Mh. L.J. 138, to point out that this Court has in that matter issued commission. He contends that as the respondents – defendants were his relatives, a police complaint was not immediately made. After hearing, I am satisfied that no substantial question of law falls for determination in this Second Appeal. The lower appellate Court has found that the evidence adduced was in contradiction to documentary proof and sale deed at Exh. 59 was silent about plot number. It further found that the case of plaintiff was that he also obtained 4' wide land from his vendor in Exh. 59 besides land mentioned in it and he also stated that he has not obtained anything in writing about it. The appellate Court has found that he was not in a position to state the direction in which said 4' wide land was located. It further found that his contention that Respondents – defendants had encroached upon a lane towards East of suit property was also not substantiated by records as 3 there was no reference to any such lane in Exh. 75 dated 5.4.1937. It further found that total suit property admeasured 340 sq. feet and therefore, it could not be expected that the appellant – plaintiff allowed the respondents – defendants to encroach upon half of it. In view of this material which is on record and which is not shown to be perverse, it is apparent that case of encroachment itself, as pleaded by the plaintiff, has been found to be not proved by the lower appellate Court. In view of these findings, there is no question of appointing any Commission in this matter. Second Appeal is, therefore, dismissed. No order as to costs. JUDGE *GS.