1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 646 OF 1999 Shantabai D/o Jairam Patil, Died through her legal heirs Jijabrao S/o Gulabrao Patil, Age : 28 Years, Occu. : Agril., R/o Village Taradi, Tq. Shirpur, District Dhule. .. .. APPELLANT (Orig. Plaintiff) Versus Suklal S/o Pandu Patil, Died through his legal heirs, 1. Bhatu S/o Sukal Patil, Age : 50 Years, Occu. : Agril., R/o Tarhadi, Tq. Shirpur, District Dhule. 2. Arjun S/o Sukal Patil, Age : 45 Years, Occu. : Agril., R/o Tarhadi, Tq. Shirpur, District Dhule. 3. Balu S/o Suklal Patil, Age : 40 Years, Occu. : Agril., R/o Tarhadi, Tq. Shirpur, District Dhule. .. RESPONDENTS (Orig. Defendant) Shri B. A. Dhengle, Advocate for the Appellant. Shri M. M. Bhokarikar, Advocate for the Respondents No. 1 to 3. 2 CORAM : N. D. DESHPANDE, J. DATE : 18TH NOVEMBER, 2009. PER COURT : 1. Heard Shri Dhengle, the learned counsel for the appellant and Shri Bhokarikar, the learned counsel for the respondents. Shri Bhokarikar is opposing the admission of this appeal, for no substantial question has been pointed out. During the course of hearing, the thrust of the argument of the learned counsel for the appellant was pointing the ground No. 4, 5, 9 and 10 as the substantial questions of law. Despite the concurrent findings recorded by the Trial Court and the First Appellate Court have been recorded against the appellant, who is the original plaintiff and brought the suit for removal of encroachment and for possession of 03 guntha of land encroached by the defendant/respondent after destroying the bandh between the land gat No. 206 and 208 belonging to plaintiff and defendants respectively. The parties are neighbouring cultivators and dispute is about the encroachment along the boundary or bandh of the Northern side. The dispute of encroachment is common between the adjoining cultivators and they always believe that, there is encroachment by the other side. 2. Admittedly, the title is not disputed and their respective holding of the land. As such, the dispute is narrow to the extent of encroachment of 03 guntha land or more and can only be ascertained and identified after correct measurement by the 3 competent authority i. e. office of the District Inspector Land Records. The record discloses and reveals that, in the year 1979, the present plaintiff had filed two suits, present suit against the respondent/defendant and another suit against Pandurang Patil and it is informed that, it was decreed in favour of the appellant. Said suit came to be filed only after measurement by the surveyor from the Office of the District Inspector Land Records on or about 20th and 21st of March, 1978 and made final in June 1978 by fixing stumps. 3. The extent of encroachment according to the plaintiff is shown 03 guntha in the measurement map and he believed the said measurement as cause of action and accordingly, within a year he filed a suit in January 1979 for removal of encroachment and for possession of 03 guntha land back from the defendant. Thus, it is seen that, encroachment is a matter of evidence and can only get identified after the measurement. Here the plaintiff relied on the copy of tippan, however, both the Courts not only discarded the said measurement, but also evidence of surveyor for carrying out actual measurement on the time and date fixed by going to the spot. 4. In nutshell the veracity and credibility of the witness surveyor and the work of measurement has been doubted for alleged claim of encroachment in the land of plaintiff. I have gone through the judgment of the Trial Court, so also the First Appellate Court i. e. the impugned judgment. The First Appellate 4 Court upheld the finding recorded by the Trial Court by re- appreciating the evidence and noted various irregularities during measurement. The evidence of plaintiff is also discussed quite in detail referring to the land of 02 acre which was not cultivable and is barren and could not be brought under cultivation because of floods and the stream. These factual details are missing in the map. The measurement did not appeal to the judicial mind of both the Courts, because the adjoining lands gat No. 206 and 208 were not considered for measurement to show the encroachment. 5. Thus, the dispute about the encroachment is not established on record by cogent and satisfactory evidence and the finding recorded is purely question of facts and I agree with the submissions made by Shri Bhokarikar, the learned counsel for the respondents that, there is no substance in the appeal. The appeal stands dismissed summarily at the stage of admission. The appeal is disposed of. [ N. D. DESHPANDE, J.] bsb/Nov.09