1 SA 894.2005 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 894 OF 2005 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders CORAM : S.V.GANGAPURWALA, J. DATE : 10/12/2010 PER COURT : 1. This is defendant’s Second Appeal. 2. The plaintiff had filed Suit for removal of encroachment on the land. The trial Court decreed the Suit directing the defendants to remove 1 ½ ft. x 30 ft. construction made by the East side of his house and to remove the obstruction created in the sheri in front of the house of the plaintiff. The defendant filed Appeal. The appellate Court modified the decree to the extent of 1.4 ft. x 30 ft. The defendant has assailed the said Judgment in the present Second Appeal. 3. Mr. S.R. Chowkidar, learned counsel for the appellant submitted that there is no actual 2 SA 894.2005 proof of the width of the land. It is only on assumption, the Judgment has been delivered by the Courts. The Courts below could not have merely on assumptions delivered the Judgment. In fact, the appellant would face more hardship than the gain to the respondent if the said Judgment is not interfered with. 4. With the assistance of the learned counsel, I have gone through the Judgment passed by the Courts below. 5. The predecessor in title of the plaintiff had a right over an area of 10 x 8 Gaj i.e. 30 ft. x 24 ft. But, in the sale deed i.e. the transaction between the defendant and his predecessor in title, the area is shown as 30 ft. x 27 ft. The predecessor in title of the defendant could not pass title of an area more than he possessed. More over, the Commissioner was appointed and he has also submitted his report, which shows that the defendant has constructed the wall and it encroaches on the said land by 1.4 ft. Said Commissioner is also examined. In that light the Courts have passed the decree. 6. Both the Courts have concurrently arrived at the said conclusion. The conclusion 3 SA 894.2005 drawn by the Courts below is a possible conclusion. The Second Appeal can not be entertained only on the ground that some other conclusion could be possible. 7. In that light of the matter, the present Second Appeal is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 894.2005