1 S.A. No. 376.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 376 OF 2010 Vyankat S/o Ramji Maske & another .. APPELLANTS VERSUS Santosh S/o Digambar More ..RESPONDENTS ... Shri. S.V. Warad, Advocate for the appellants CORAM : S.V. GANGAPURWALA, J. DATE : 20h December, 2010. PER COURT : This is defendant’s Second Appeal. The plaintiff’s suit for removal of encroachment of 31 R land has been decreed by both the Courts below. The defendant has assailed the said Judgment and Decree in the present Second Appeal. 2. Shri Warad, the learned Counsel for the appellants contended that for arriving at specific conclusion about encroachment there has to be a composite measurement of all the lands and without composite joint measurement the 2 S.A. No. 376.2010 encroachment cannot be ascertained. The learned Counsel has relied on the judgments of the learned Single Judge of this Court viz. the Judgment in a case of “Manohar Mahadeorao Pargrut V/s. Sunanda Ramdas Tharkar, reported in 200*(3) Bom.C.R. 4” and Judgment of the learned Single Judge in Second Appeal No. 399 of 2009, dated 19-11-2009. 3. Shri Warad, the learned Counsel further contended that there is no proof of the alleged date of encroachment nor when the plaintiff became major. In absence of evidence in this respect decree could not have been passed. The learned Counsel further contended that the defendant is in continuous uninterrupted possession of the suit property since beginning i.e. prior to 1984. As such, the defendant became owner by adverse possession of the said portion of the land. 4. The ownership of the plaintiff and defendant of the respective lands is not a subject matter of the dispute. The only question 3 S.A. No. 376.2010 is about the encroachment as claimed by the plaintiff. Plaintiff has relied on the measurement carried out by the cadastral surveyor PW-1 who has shown that he measured the land of the plaintiff and has drawn the map Exh. 38, and according to him defendant was found in possession of 31 R land of plaintiff. The said surveyor is also examined to prove the said map. The arguments of Shri Warad, the learned Counsel could have been considered in the light of the Judgments referred by him, if the land of the defendant would not have been measured. It is on record that DW-3 has also measured the land of the defendant. DW-3 is a surveyor who has measured the land at the behest of defendant. Even he has found that the defendant has committed encroachment of 31 R land on the land of plaintiff. As such, when even the defendant’s surveyor himself has testified that the encroachment made by defendant on the land of the plaintiff, and both the surveyors are concurrent on this aspect it is sufficient to hold that the defendant encroached on the land of plaintiff. In such circumstances, no question arises of again 4 S.A. No. 376.2010 going in for joint measurement. 5. Regarding the other aspect of the mater the concept of adverse possession would arise, only if the possession of defendant on that particular area is open hostile and to the knowledge of the plaintiff. The plaintiff only after the measurement was carried out got the knowledge that defendant has encroached over that area. In the light of the same, even the concept of adverse possession could not be attracted. 6. In the light of above, Second Appeal being devoid of substantial question of law is dismissed. However, there shall be no order as to costs. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*