1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 475 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. K.K.Kulkarni, Advocate for appellant. ................................ CORAM : S.V. GANGAPURWALA, J. DATE : 22/11/2010 PER COURT : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for possession of the encroached area of 25 R. from defendant nos. 1 and 2 and 5 R. from defendant no. 3. It was the case of the plaintiff that defendant nos. 1 and 2 have encroached 25 R. land from the northern side and defendant no. 3 has encroached 5 R. land from southern side. The land of the plaintiff admeasures 63 R. 3. The Trial Court on appreciation of evidence of the plaintiff and the Cadestral Surveyor, dismissed the Suit. The plaintiff preferred Appeal. The appellate Court confirming the Judgment and decree of the Trial Court, dismissed the Appeal. The plaintiff has assailed the said Judgment in the 2 present Second Appeal. 4. Mr. K.K.Kulkarni, the learned counsel for the appellant strenuously contended that the Cadestral Surveyor has proved the Map. The defendants have not filed any Appeal challenging the said Map. In such circumstances, there was no impediment for the Courts to have accepted the Map. The learned counsel further contended that it is nowhere proved by the defendants that this encroached area is either over-lapping. In such circumstances, the decree for possession of the encroached area as shown by the expert i.e. the Cadestral Surveyor should have been passed. 5. With the assistance of the learned counsel, I have gone through the Judgment passed by both the Courts. 6. The aspect of encroachment can only be proved by measurement and evidence of Cadestral Surveyor. Both the Courts have found anomalies in the said measurement. The plaintiff as well as Cadestral Surveyor has admitted that the land of the plaintiff is in two pieces. But, in the Map the Cadestral Surveyor has not shown the same. The plaintiff as well as the Cadestral Surveyor have categorically admitted in the cross examination that some part of the land of the plaintiff has been acquired for road. But, the same has not been shown in the Map which is relied, interalia when some part of the land has been acquired for road, 3 the holding of the plaintiff would stand reduced. But, while showing the encroachment, that aspect has not been considered by the Cadestral Surveyor thereby itself showing that the measurement can not be relied upon. In absence of the same, there would be no evidence for coming to the conclusion about the alleged encroachment. 7. Regarding the contention that the alleged encroachment does not show over-lapping about the land of the defendants and the plaintiff, the same is not sustainable for the reason that the lands of the plaintiff and defendants are adjacent to each other. The encroachment is shown on the basis that the plaintiff holds 63 R. land. As some of the part of the land has been acquired for road, the holding would naturally be reduced and if the holding is reduced, the area of alleged encroachment also would not be there. 8. In light of the above, the Second Appeal being devoid of any substantial question of law, is dismissed, however, with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 475.2010