1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.578 OF 2009 WITH CA NOS.10341/2008; 7686/2009. Kerba Dhanderao Bandgar (died) through L.Rs. - 1) Baban Kerba Bandgar and Ors. - APPELLANTS VERSUS Pandurang Ganpatrao Bandgar & Ors. - RESPONDENTS ***** Mr.BR Sontakke-Patil Advocate for Appellants; Mr.KK Kulkarni, Advocate for Respondent No.1. ----- CORAM : K.U.CHANDIWAL, J. DATE : 6th April, 2010. PER COURT : 1) Heard. 2) Regular Civil Suit No.226/1985 was decreed on 19th September, 2001, directing the defendants to remove themselves from encroached portion of land Survey No.243/1 to the extent of 12 R from land holder of Survey No.243/2 and Land 2 Survey No.243/3 to the extent of 3 R. from land holder of Survey No.243/4. The matter was taken by the aggrieved defendants before the learned District Judge and on re-appreciation of the evidence, coupled with the map, the appeal is dismissed and hence the Second Appeal by the aggrieved defendants. 3) Mr.Patil for the appellants/defendants would argue, the measurement carried by T.I.L.R. is a betrayal to the frame as no notices are issued to the defendants. Secondly, the measurement does not depict that it was covering the entire land; thirdly the matter needs to be remanded as the Surveyor has also found encroachment over some portion by the plaintiff on the defendants’ land. 4) The contention that the defendants were not present at the time of measurement or no notices were issued to them, appears to be illusory. It was an application made in the 3 Court for getting the lands measured through process of a Surveyor, which construes a notice to the defendants with a specific date as to when the measurement was to be caused. If the defendants skipped themselves attending the measurement process, nobody can help them. However, the evidence of Pandurang, the plaintiff, indicate that during the process of measurement, defendants were present. This has been endorsed and cemented by the witness of the T.I.L.R. These situations forced to accept that the defendants though present, did not venture, either to sign the map or the panchanama with a sinister idea to coin the same at later stage. 5) The contention that there is an encroachment by the plaintiff over other portion of lands of the defendants, may be correct, however, for want of any counter claim or any independent proceeding from the defendants, in the Second Appeal, there will not be a decree or direction in favour of the defendants. 4 6) The request for remand of the matter though appears to be innocuous, it has a long drawn ramifications, as the parties are litigating since last 15 years. No substantial question of law is made available to be formulated as the appreciation of evidence by both the Courts is on facts and need not be disturbed in the Second Appeal. The encroachment by the plaintiff, if indeed it subsists, the defendants have their independent remedies, which in spite of there being a decree against them, they can legally exhaust. Second Appeal with Civil Applications dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/sa578.09