IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.1353 OF 2004. APPEAL NO.1353 OF 2004. APPEAL NO.1353 OF 2004. Iqbal Ismail Shaikh & Ors. ...Appellants Versus Shri Ashok Eknath Bagul & Anr. ...Respondent Shri A.N.Maniyar for the Appellants. Ms Deepa Matwankar h/f Shri J.N.Pawar for the Respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 07th January, 2008. : 07th January, 2008. : 07th January, 2008. P.C.: P.C.: P.C.: 1. Heard Shri Maniyar appearing for the appellants. The appellants are the unsuccessful plaintiffs. The appellants filed a suit for removal of encroachment. The suit was dismissed by the trial Court and the decree of the trial Court has been affirmed by the appellate Court. 2. The first submission of Shri Maniyar is that the issue regarding title was framed by the trial Court after the case was concluded for judgment and therefore the appellants were prevented from leading evidence on the recasted issue. He submitted that as sufficient opportunity was not available to the appellants to lead evidence on the recasted issue, an order of remand deserves to be passed. He submitted that the surveyor ... 2 ... appointed under the Maharashtra Land Revenue Code, 1966 had prepared a map which was produced on record which shows an encroachment. He, therefore, submitted that the courts below have committed an error by dismissing the suit. 3. I have carefully considered the submissions. The suit filed by the appellants was not on the basis of prior possession but was on the basis of title. The written statement was filed by the defendants disputing the title of the appellants. In the alternative the respondents-defendants came out of with a case of adverse possession. Thus, the appellants were all along aware that issue of title was very much involved in the suit. Therefore, the Appellate Court was right in holding that no prejudice was caused to the appellants on the ground that issues were recasted by the trial Court. 4. The courts below and especially the Appellate Court has considered the report and the map drawn by the surveyor. A finding of fact has been recorded that the survey was carried out without notice to the concerned land owners. The Appellate Court has noted that the surveyor admitted that no written notice was issued by him even to the respondents and the case made out by the ... 3 ... surveyor was that he had orally informed the alleged encroachers. Apart from that, the Courts below and especially the Appellate Court have found that the map drawn by the surveyor does not disclose the exact extent of the alleged encroachment. 5. In view of concurrent findings of fact, no substantial question of law arises. Second Appeal is accordingly dismissed with no order as to costs. JUDGE JUDGE JUDGE