( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 10 OF 2005 WITH CIVIL APPLICATION NO. 2749 OF 1999 Ganpatrao Narayanrao Rajnale .. Appellant Versus Ramkrishna s/o. Namdeo Munde .. Respondent deceased – through his legal heirs. Shri V.H. Dighe, Advocate for the appellant. Shri U.B. Bondar, Advocate for respondent No.6. CORAM : P.R. BORKAR,J. DATED : 02.07.2009 P.C. :- 1. Heard Adv. Shri V.H. Dighe for the appellant and Adv. Shri U.B. Bondar for respondent No.6. The appellant is original plaintiff in whose favour the learned II Jt. Civil Judge, Junior Division, Ambajogai has passed decree of possession to the extent of 3 gunthas in Regular Civil Suit No.135 of 1978. It is said to be portion encroached by the respondent into the land of the appellant. But said judgment ( 2 ) and decree is reversed by the II Additional District Judge, Ambbajogai in Regular Civil Appeal No.128 of 1984 decided on 17.11.1997. 2. It is case of the appellant that he is owner of Survey No.69/AA admeasuring 9 Acres 30 Gunthas. The land is situated at village Pangri,Tal. Ambajogai (now Tal. Parli Vaijnath), Dist. Beed. The land of the respondent is adjoining the land of the appellant and a stream is flowing in South North direction in between their land. It is say of the appellants that the defendant dug portion of stream and diverted flow of the stream towards East and due to which there was diversion of the stream and it is also further say that the respondents made encroachment and therefore filed suit for possession of 20 Gunthas land, which is said to be encroached portion. After considering the evidence of Cadastral Surveyor, the Trial Court held that the encroachment was only to the extent of 3 R and accordingly decreed the suit. In the judgment it is also held by the Trial Court that there was natural change of course of the stream and it was not creation of the respondents. ( 3 ) 3. The First Appellate Court held that the Trial Court had wrongly held that the appellant/plaintiff is owner of 9 Acres 30 Gunthas land and proceeded on such assumption though the sale-deeds on record clearly indicated that he is owner of 9 Acres 2 Gunthas land and he referred to copies of sale- deed produced with list Exh.21. It appears that on 10.03.1970 the plaintiff/appellant purchased 4 Acres 21 Gunthas land from one Vasant Munde out of Survey No.69/A. On same day he purchased 4 Acres 21 Gunthas land out of Survey No.69/AA from Ramkrishna Munde. Thus total area of the land purchased by the plaintiff on 10.03.1970 was 9 Acres 2 Gunthas land, though in the 7/12 extract the area was shown to be 9 Acres 30 Gunthas land. Thus the District Court held that the title of the appellant is only 9 Acres 2 Gunthas land. Moreover, the Appellate Court has discussed the evidence of the Cadastral Surveyor Abdul Salam in para 12 and 13 of the judgment. It is observed that the Surveyor had not issued notice to the respondents nor respondents were present when the measurements were carried out. The Cadastral Surveyor noted that 32 Gunthas land out of suit land was washed away due to diversion of the stream. He has shown encroachment to the extent of 3 Gunthas land. It is observed by the First ( 4 ) Appellate Court that the Cadastral Surveyor in cross- examination stated that he did not know how many boundary marks were available on the spot. He did not try to know how many boundary marks are intact. He had also even not given notices to the respondents. In the facts and circumstances of the case, when the plaintiffs are owner of 9 Acres 2 Gunthas land, they wrongly made claim to 9 Acres 30 Gunthas land. Therefore, the appeal was allowed and the suit was dismissed. 4. After carefully considering evidence and reasoning given by the First Appellate Court, this appeal needs to be dismissed. Hence, the Second Appeal is dismissed at the stage of admission. 5. In view of disposal of the Second Appeal, Civil Application No. 2749 of 1999 does not survive. The Civil Application stands disposed of. [P.R. BORKAR,J.] snk/2009/JUN09/sa10.05