1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 249 OF 2003 Jairam Mangaru Shahare Vs. Sakubai wd/o Kawdu Raut thr. L.Rs. & 5 Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri O. W. Gupta Adv for appellants. Shri K. V. Kotwal Adv for respondents. CORAM: C. L. PANGARKAR J. Dated: 30 th SEPTEMBER, 2009. This is a second appeal by original plaintiff. Plaintiff filed a suit claiming partition and separate possession of his share in the properties described in the plaint. The plaintiff contended that there was a family arrangement in the year 1971 and in that arrangement 3.64 acres of land was given to him. He found that he was in possession of less area of land therefore he instituted a suit for partition and separate possession. Defendants on the other hand contended that there was 2 in fact a partition in the year 1970 and plaintiff was given 3.64 acres of land as his share in the said partition. It was contended that plaintiff is in possession of that much area. Defendants are not in possession of any of the portion belonging to the plaintiff. Learned Judge of the trial Court accepted the theory that there was a family arrangement in the year 1971. He also accepted the theory of defendant that there was a partition in the year 1970 and that plaintiff was allotted 3.64 acres of land. However the learned Judge of the trial Court directed the defendants to handover .50 R. land out of Sur. No. 30 and 25 each to the plaintiff. Being aggrieved by this decree the defendants preferred an appeal before the District Judge. Learned Additional District Judge who heard the appeal also concurred with the finding that plaintiff was allotted 3.64 acres of land. According to him plaintiff was supposed to file suit for possession and removal of encroachment and holding so he allowed the appeal and dismissed the suit. Learned counsel for the appellant submits before me that judgment of the first appellate Court is not correct. He submits that the plaintiff has been held to be owner of 3.64 acres of land and thererfore a decree to that effect must follow. Plaintiff had essentially filed a suit for partition and separate possession. He had 3 not filed a suit for removal of encroachment. Trial Court as well as first appellate Court have held that there was a partition in the year 1970. If there was a partition in the year 1970 it must be assumed that plaintiff was put in possession of the area or the land allotted to him. If the plaintiff was found in possession of less land later sometime it was for the plaintiff to show that defendants were in possession of the area of his share. The learned Judge of the first appellate Court has found that the Surveyor was appointed who had drawn the map and the Plaintiff had failed to examine the said Surveyor and prove the said map in order to prove that defendant was in possession of the land belonging to the plaintiff. It is not disputed that the Surveyor is not examined. If the Surveyor is not examined it could be said that the said map Ex.49-A was not at all proved in order to hold that defendant had made any encroachment. Shri Kotwal learned counsel appearing for the respondent brings to my notice that the proposition is not disputed by the counsel for the appellant that the appellant-plaintiff himself had objected to the map Ex. 49-A as incorrect and had even applied for appointment of another person as Surveyor. Obviously, plaintiff himself had not relied on Ex.49-A. Learned counsel for the 4 appellant had tried to refer to the map Ex. 49-A. It is difficult to refer to that map because it is not proved and fact is that plaintiff had objected to that map itself. Learned Judge of the first appellate Court had rightly appreciated the evidence on record. I do not see any perversity in it. There is no substantial question of law involved. Appeal is dismissed in limine. JUDGE svk 5 6 7