1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.23 of 2002 Ramrao s/o Goivindrao Kulkarni (since deceased) through L. Rs. .. Appellants vs Prabhu s/o Rajaram Shinde (since deceased) through L.Rs. ...Respondents Shri Milind M. Patil, Advocate, for the appellants. CORAM: P.R.Borkar, J. DATE: 9th June 2009. P .C . 1. This i second appeal is filed by original plaintiff, being aggrieved by decree passed by Additional District Judge, Ambajogai, in Regular Civil Appeal No. 191 of 1985 decoded on 29.7.1999, whereby he set aside the decree passed by the learned Civil Judge, Junior Division, Kaij, in Regular Civil Suit No. 238 of 1978 for possession of 16 gunthas of land out of survey No. 120 situated at village Janegaon, Taluka Kaij, which is said to have been encroached by Respondent-defendant. 2. Some of the facts which are not in dispute are as under; Survey No. 120 of village Janegaon originally belonged to Plaintiff Ramrao and his two brothers namely, Khanderao and Madhavrao Entire land admeasured 8 acres and 4 gunthas. Plaintiff is owner of 2 acres 28 gunthas. 2 Madhav sold portion of 1.24 acres out of the land of his share to present defendant. It is the case of appellant-plaintiff that in 1976, there was encroachment by defendants upon his land and thereafter they (defendants) got the land measured and it was found that there was encroachment upon Plaintiff’s land and, therefore, he filed suit for possession of the encroached portion. 4. The trial court decreed the suit. However, on appeal, the District Court dismissed.the suit. 5. Learned counsel for the appellant has taken me through the judgment of the first appellate court. The first appellate court has disbelieved the evidence regarding encroachment. In order to prove encroachment, the plaintiff examined himself on oath, as also one Shri Zagde Cadestral Surveyor . Plaintiff also examined Madhavrao Kulkarni -the vendor of the defendant. 6. In paragraph 7 of the impugned judgment, it is stated that though land survey No.120 was divided between three brothers, actual measurements were not carried out. Bandh was in existence between the lands of plaintiff and defendants, at the time of sale deed. It is also stated that no notice was given to the defendants before measurement was carried out. Cadestral Surveyor has specifically admitted that there was no record to show that notices of measurements were issued. He could not tell when the notices were actually issued. The defendants have come with a specific case that no notices were issued to them. 7. In paragraph 8 of the judgment, the first appellate court has also observed that it has been admitted by the Cadestral Surveyor that he had not separately measured lands of Madhavrao or Khanderao . Cross examination of the Cadestral Surveyor , particularly in paragraph 3, clearly indicate that he has not measured the pieces of lands in possession of Madhavrao and Khanderao, separately. He also admitted that he has shown possession of defendants to the extent of 80 R. He further admitted that he has not shown encroached portion of the land of the plaintiff. 3 8. Learned first appellate court has further observed that it was the duty of the Cadestral Surveyor to measure the land of the plaintiff first and then to find out how much portion of that land was in possession of the adjoining land owner. The District Court also observed that in absence of record of division of lands, it was difficult to ascertain actual western side boundary of the land in possession of the plaintiff. 9. In paragraph 9 of the judgment, the learned District Judge has referred to evidence of Madhavrao and observed that he has not stated about encroachment. It is also observed that there was no evidence that defendants dug well in the land after they purchased the same from Madhavrao. 10. The learned District Judge has given sufficient reasons for not trusting the evidence led by plaintiff and for not passing the decree for possession of encroached portion. In my opinion, therefore, the reasons given by the learned judge are proper and legal and the view taken by him is not perverse and the same is based on material on record. It is a finding of fact. No substantial question of law arises. 11. Hence, appeal is dismissed at the admission stage. (P.R.BORKAR, J.) pnd/oo sa23.02