1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.198 OF 2009. Shamrao S/o Nana Kshirsagar and another ... Appellants. Versus Vishnu S/o Nana Kshirsagar and others ... Respondents. ... Mr.K.F.Shingare, advocate for the appellants. Mr.V.B.Garud, advocate for the Respondents. ... WITH SECOND APPEAL NO.214 OF 2009. Shamrao S/o Nana Kshirsagar and another ... Appellants. Versus Vishnu S/o Nana Kshirsagar ... Respondent. 2 Mr. K.F.Shingare, advocate for the appellants. Mr.V.B.Garud, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 11.11.2009. PER COURT 1. These are two Second Appeals preferred by original defendant of suit bearing RCA No. 56/1999 and plaintiffs' of suit bearing RCS No. 204/1997. The suit (RCS No.56/1999) was filed for removal of encroachment to the extent of 23 Ares out of 3 acres 23 gunthas land bearing S.No. 126/3/3 situated at Kannad as described in paragraph 5 of the plaint. Original plaintiff Vishnu and appellant No.1 Shamrao are real brothers interse. The case putforth by Vishnu was that the suit land was allotted to his share during family partition. The appellant No.1 Shamrao encroached over eastern 2 Ares strip of his land which was revealed during measurement carried out by the TILR. Though demanded, defendant refused to deliver possession of the encroached strip of land. Hence, he sought removal of the encroachment along with the mesne 3 profits. It is pertinent to note that the appellants had filed suit (RCS No.204/1997) for injunction simpliciter alleging that they are owners of land S.No.126/3/1, whereas Vishnu was allotted 3 acres 20 gunthas land bearing S.No. 126/3/3 during the family partition. The appellants are father and son interse. The trial Court dismissed the suit of the appellants for perpetual injunction and so also the first appellate Court confirmed the said decree in appeal bearing RCA No.206/2004. In the suit filed by Respondent Vishnu, decree for removal of encroachment was rendered and the same was confirmed by the first appellate Court. Obviously, it is worthy to be noted that in both the proceedings of the suits, findings of facts are rendered merely on appreciation of the evidence tendered by the parties. 2. An argument is advanced by learned counsel Mr.Shingare, for the appellants that admissions of the Power of Attorney of Respondents are not properly appreciated by the Courts below. He would submit that when the 4 Power of Attorney holder of Respondents admitted that the area of Respondent Vishnu was only 3 acres 3 gunthas then he could not have claimed anything more. I do not agree. The statement of the Power of Attorney Holder Keshav, who is the son of Respondent No.1 Vishu, purports to show that the area in possession was 3 acres 3 gunthas. In fact, pleadings of the appellants would show that Vishnu was allotted 3 acres 20 gunthas land and, therefore, the so-called admission of PW Keshav can not be blown out of proportion. It is contended that the testimony of the cadastral surveyor (TILR) is not properly appreciated and perverse finding is recorded by both the Courts. The question of appreciation of the evidence can not be treated as substantial question of law. The Apex Court in "Gurdev Kaur and others Vs. Kaki and others" AIR 2006 Supreme Court 1975, held that even if finding of fact is grossly erroneous then also the same can not be challenged by way of Second Appeal in view of the Ambit of Section 100 of the C.P.C. Faced with this difficulty Mr.Shingare, invited my attention to the observations in "Laxmi Ram (Dead) by Lr. 5 and others Vs. Bietshwar Singh and others" (2008) 10 Supreme Court Cases 697, Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi (2009) 3 Supreme Court Cases 287, Maria Colaco and another Vs. Alba Flora Herminda D'souza and others (2008) 5 Supreme Court Cases 268 and Govinda S/o Raoji Katole Vs. Ganpati S/o Tukaramji Khanke Dead through L.Rs. 2002 (1) ALL MR 610". What transpires from the reading of the authorities referred to above is that finding of trial Court if is based on error of record and total misappreciation or non-appreciation of evidence on record then it may be regarded as substantial question of law. If prima facie, the finding is shown to be perverse and based on no evidence or rendered due to misreading of the evidence then perhaps such a question may be regarded as substantial question of law. In the present case, both the Courts appreciated version of the TILR and held that the measurement was properly carried out in respect of the land of Vishnu. The parties are real brothers and their lands are adjoining to each other. The identity of the encroached land is duly establish as a result of 6 measurement carried out by the TILR. It appears that the appellants filed suit for injunction knowing well that a part of the land was being claimed by Respondent No.1 Vishnu as the strip encroached over by them. Considering these aspects, I have no hesitation in holding that both the Second Appeals are bereft of any substantial questions of law. Hence, they are dismissed. (V.R.KINGAONKAR,J.) asp/office/sa19809