1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 628 OF 2008 WITH CIVIL APPLICATION NO. 1232 OF 2008 Balkrishna Dinkar Manve & ors........Appellants versus Dattu Daji Khamkar & ors........ Respondents. Mr. Pradeep Gole adv. for the Appellants Mr. R.A. Shaikh i/b Jafar B. Shaikh adv. for the respondents CORAM: RANJIT V. MORE, J. DATED : 12th DECEMBER,2008. P.C.: 1. Heard Mr. Gole learned counsel for the appellant and Mr. Shaikh for the respondent. 2. The appellant is the original plaintiff and the respondents are original defendants. Suit was filed for declaration that the plaintiffs have became the owner of the suit property by adverse possession and also for perpetual injunction that defendants should not take their possession in B.N.D. Case No. 3/2003. The trial court dismissed the suit and appellants/plaintiffs challenged the trial court's decree by filing appeal before the lower appellate court. However by the impugned judgment and decree the said appeal was also 2 dismissed. Both the lower courts below concurrently held that the appellants/plaintiffs failed to prove their peaceful, open, unobstructed and continuous possession in the suit property for more than 12 years. The above said finding is recorded after appreciation of evidence on record. Appreciation cannot be said to be perverse. No question of law much less substantial question to law is involved. Second appeal is therefore dismissed. 3. In view of the dismissal of the second appeal civil application does not survive and the same is also dismissed. 4. At this stage Mr. Gole learned counsel for the appellant submits that during the pendency of suit in the trial court, the court commissioner was appointed to measure the suit land along with adjacent land. The measurement report given by the commissioner at Exh. 24 shows that the area of appellant/plaintiff''s residential house (wada)approximately about 175 sq. feet in triangular form comes within the suit property. He apprehends that in view of dismissal of second appeal the respondent/defendant will take possession of the said area by demolishing portion of 175 sq.feet. Mr. Shaikh learned counsel for the respondent/defendant after taking instructions from his client who is present in the court makes a statement that the respondent/defendant shall not demolish the appellant/plaintiff's abovesaid portion of the residential house ad measuring about 3 175 sq.feet. The statement is accepted. (R. V. More, J.)