1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.230 OF 1991 1) Gulabsingh s/o Rajaramsingh, Age: 60 Yrs., occu.Agril. R/o Vishnunagar, Nanded. 2) Gajarabai w/o Laxmansingh, Age: 23 Yrs., occu. Household R/o Kapsi, Tq. Kandhar ..APPELLANTS (orig.Plaintiffs) VERSUS Sattaji s/o Munjaji Age: 55 Yrs., occ.Agril r/o Mandhala Bk, Tq. Nanded. ..RESPONDENT (orig.Defendant) ***** Mr.MK Deshpande Advocate for Appellant; Respondent served. ----- CORAM : K.U.CHANDIWAL, J. DATE : 25th June, 2009. ORAL JUDGMENT : 1) Heard learned Counsel for Appellant. 2) The unsuccessful plaintiff before the learned Additional District Judge in RCA No. 386/1983, causing modification of the decree 2 recorded by learned CJJD, Nanded, is in Second Appeal. 3) On 19.8.1991, the appeal is admitted on Ground No.3 to be a substantial question of law between the parties. Ground No.3 reads as under - “The lower appellate court has granted relief of ownership and injunction but at the same time has refused decree for recovery of possession of encroached portion. Hence, the same being self-contradictory amounts to a substantial question of law.” 4) The respondent/original defendant, in spite of service absent. 5) The parties are referred by their status as plaintiff and defendant. 6) The plaintiff filed a suit for declaration of ownership and for perpetual injunction in relation to land Gut No. 133 and also sought possession to the extent of 8 Are, alleging it is encroached by the defendant. The Court of first instance accepted plaintiff’s contention to be owner of the property land Gut No. 133, admeasuring 19 Acres and 37 Gunthas, however, the First Appellant court on re- assessment of the evidence found that the plaintiff’s possession and ownership over the land appears to be 19 Acres and 29 Gunthas and the encroachment of 8 Are is not proved. 7) The learned Judge of the first Appellate 3 Court, on analyzing the evidence of the Cadestral Surveyor and panch during measurement, found that the Cadestral Surveyor did not venture to serve notices to the adjoining land owners, i.e. Of Survey No.138, the alleged encroachers, though the Cadestral Surveyor indicated in his evidence that owner of land Gut No.138 was present at the time of measurement and refused to sign the panchanama. The Court also found that there is no whisper to this effect. That apart, the Cadestral Surveyor committed a mistake when he prepared a map and not disclosing the encroachment of 8 Are by the land owner of Gut No.138 in the land of plaintiff Gut No.133. This miserable situation could not allow the learned District Judge to accept that there could be encroachment of 8 Are on the plaintiff’s property by the defendant. 8) The defects in the measurement are at large, however, the plaintiff is the sufferer. 9) I do not see any reason to interfere in the order of the learned first Appellate Court, who has not acted upon the measurement report of the Cadestral Surveyor to the extent of 8 Are. The other reliefs in favour of the plaintiff are not subject to challenge by the aggrieved defendant/respondent, hence they are not to be traversed with. 10) The substantial question of law is answered that there is no error on the part of 4 the learned first Appellate court in not accepting the evidence of Cadestral Surveyor and panch. The Second Appeal dismissed. No costs. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/sa230.91 Authentic copy (BD VADNERE,PS)