1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO. 131 OF 2003 Laxman s/o Vinayakrao Janse .. APPELLANTS VERSUS Punjaji s/o Mahadu Salve & another .. RESPONDENTS Shri V.D. Sonawane, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 20th July, 2009. PER COURT : 1 Original plaintiff / appellant herein has approached this court raising exception to the concurrent findings recorded by the courts below. 2 Plaintiff instituted suit being Regular Civil Suit no. 95/1994 against the defendants who are the adjoining land owners, claiming that the defendants have encroached upon the agricultural land to the extent of 40 R belonging to the plaintiff. Plaintiff is the owner of land survey no. 233 to the extent of 2 acres 28 gunthas whereas defendants are owners of an area to the extent of 7 acres and 28 gunthas. Plaintiff claims that he has measured the agricultural property on 11-2-1994 and thereupon he found that the defendants have encroached over the area to the extent of 40 R. Plaintiff as 2 such instituted the suit claiming recovery of possession of encroached area. Defendants appeared and presented their written statement and controverted the contentions raised by plaintiff. According to defendants, the alleged map drawn by the Cadastral Surveyor in respect of measurement of the agricultural land is bogus. Measurement has been carried out behind their back and as such does not bind them. According to the defendants, they are in possession of agricultural land to the extent of 7 acres and 28 gunthas out of survey no. 233 and have not encroached upon any area belonging to the plaintiff. 3 Trial court after receiving evidence lead by the parties, came to the conclusion that the plaintiff has failed to establish his case and as such, dismissed the suit. Appeal presented by the plaintiff being Regular Civil Appeal no. 249/2003 came to be heard and disposed of by the 4th Ad-hoc Additional District Judge, Aurangabad who was pleased to dismiss the same by judgment and order dt. 30-9-2005. 4 I have perused the judgments recorded by both the courts below. Admittedly, first measurement carried out by plaintiff on 11-2-1994 was without notice to the defendants. The report of second measurement which was carried out as per the directions of the court also is not worthy to be relied upon. The Cadastral Surveyor who was examined as witness has admitted in his evidence that the measurement was carried out as per the court order on 27-5-2002. However, in cross examination he has admitted that he scored the date 10-2-2002 and in its place has re-written date as 27-5-2002. He received the order issued by the court on 7-3-2002. The 3 Cadastral Surveyor is not in a position to tell as to how much area is possessed by the plaintiff. In these circumstances, trial court did not find it appropriate to place reliance on the evidence of the Cadastral Surveyor who measured the landed property as per the order issued by the court and at the instance of the plaintiff. Apart from this, the Cadastral Surveyor has also admitted in his deposition that he is not in a position to tell as to who has encroached upon the area to the extent of 40 gunthas belonging to the plaintiff and he has not ascertained the same during measurement. In these circumstances, trial court was justified in dismissing the suit. Reasons recorded by the trial court appear to be reasonable and based on proper appreciation of evidence placed on record by the parties. The first appellate court has also not erred in dismissing the first appeal. The instant appeal raises questions relating to appreciation of evidence. No substantial question of law arises for consideration of the appeal. Appeal therefore stands rejected summarily. 5 In view of dismissal of the appeal, pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa131,06.odt