1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 391 OF 2009 Baban s/o Shahadu Gaikwad APPELLANT VERSUS Tanaji s/o Pundlik Gawali RESPONDENT P.V. Mandlik, Senior Counsel for the appellant. ===== CORAM: R.M.BORDE, J. DATE : 30th July, 2009. PER COURT: 1 Original plaintiff is raising exception to the judgment and decree passed by the 1 st Adhoc Additional District Judge, Aurangabad on 29-8-2003 in Regular Civil Appeal no. 368/2003 thereby reversing the judgment and decree passed by the Civil Judge, Jr.Dn., Vaijapur on 4-11-2003 in Regular Civil Suit no. 290/95. 2 It is the case of the plaintiff that land admeasuring 2 H and 83 R out of gat no. 49 of Vaijapur was purchased by him from one Parwatabai Parbhat for consideration of Rs.1,61,000/-. According to him, in the month of July 1994, defendant made encroachment over the land by ploughing the common ridge between his land and the land of the defendant who is the adjacent land holder. Plaintiff got his land measured through TILR and it was revealed that the defendant has committed encroachment over an area to the extent of 25 R. Plaintiff as such approached the civil 2 court claiming relief in respect of recovery of possession of the encroached portion from the defendant. Defendant resisted the suit by filling written statement. The factum of purchase of an area to the extent of 2 H and 80 R out of land gat no. 49 by plaintiff has not been denied by the defendant. However, he has denied the allegation in respect of he having committed encroachment over the land belonging to the plaintiff. After considering the evidence lead by the parties, trial court came to the conclusion that the plaintiff has established his case and as such granted decree in respect of recovery of possession of land from the defendant. Defendant being aggrieved by the judgment and decree passed by the trial court approached the appellate court by filing Regular Civil Appeal no. 368/03 which came to be heard and dispose of by the first Adhoc Additional District Judge, Aurangabad who was pleased to allow the same by judgment and decree dt. 29-8-2005. 3 I have perused the judgment recorded by both the courts below. Plaintiff has placed reliance on the evidence of surveyor Ramesh Dike who has measured the lands and has recorded that the adjacent land holder has encroached upon an area to the extent of 25 R. On assessment of the evidence, it transpires that the surveyor Ramesh Dike in his cross examination has admitted that before conducting measurement he had not issued notice to the co-owner of the land. Defendant has denied that he was present at the time of measurement by the surveyor. Apart from this aspect, it is noted by the appellate court in its judgment that the area occupied by nala as well as ridge which passes through the disputed land has not been recorded by the surveyor in the measurement map and the area occupied by nala has not been deleted therefrom. 3 Apart from this aspect, the surveyor has not measured the entire gat no. 49 which includes the land belonging to the plaintiff and defendant. The surveyor carried out measurement only in respect of the land belonging to the adjacent land holders, it is difficult to arrive at conclusion as regards who has committed encroachment and to what extent. In these circumstances, appellate court deemed it fit to reverse the judgment and decree passed by the trial court. Reasons recorded by the appellate court are reasonable and based on proper appreciation of evidence placed on record by the parties. Appeal does not give rise to any substantial question of law. Appeal therefore stands dismissed summarily. 4 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. ( R.M.BORDE, J.) ******* dyb/office/sa391.09.odt