1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.144 of 2008 Rahul Vasanrao Patil & Anr. .. Appellants Vs. Shankar Jagu Mane & Ors. .. Respondents Mr. Umsh Mankapure, Advocate, for the appellants. Mr. Bhushan A.Walimbe, Advocate for the respondent No.1. CORAM: J.H.BHATIA,J. DATE : 10th September, 2009. P.C. 1. Heard the learned Counsel for the parties. 2. The Respondent no.1 is the original plaintiff. He had filed Regular Civil Suit No.252 of 1990 contending that the defendants Nos. 1 to 4 had made encroachments on Gat no.828 situated at Nagthanem Taluka Tasgan. He claims to be one of the co-owners of that property. Defendant no.5 was another co- owner. In the same suit, he made a prayer for removal of encroachment against defendants Nos. 1 to 4 and sought partition of the property and half share against respondent no.5. The suit was contested by the defendants. The trial Court with 2 consent of the parties appointed a Court Commissioner to measure the land and the Court Commissioner’s report revealed that the defendant no.1 had encroached upon 6 Ares of land, while defendant No.2 had encroached upon 1 Are of land. The trial court also came to the same conclusion after hearing the parties.. However, the trial court dismissed the suit on the ground that in the same suit, the plaintiff could not make a prayer for removal of encroachment against some of he defendants and for partition against one of the defendants. The plaintiff preferred Regular Civil Appeal No.746 of 1999. It appears that during the pendency of that appeal, the plaintiff relinquished the claim of partition against defendant no.5 and thus in the suit the prayer was limited only to removal of encroachment. The first appellate Court allowed the appeal and decreed the suit against the defendants Nos. 1 and 2, who have preferred the Second Appeal. 3. As the plaintiff had relinquished the claim of partition in the suit by making such statements before the first appellate Court that prayer need not be considered. Both the courts below have given concurrent finding that defendants Nos. 1 and 2 had made encroachments on the suit land to the extent of 6 Ares and 1 Are respectively. Accordingly, the first appellate Court passed the decree in favour of the appellant. 3 4. The learned Counsel for the defendants Nos. 1 and 2/appellants contended that the Court Commissioner was not examined before the Court and therefore the report was not proved. However, it appears that the Court Commissioner’s report was admitted in evidence and exhibited. No objection was taken to the same. None of the parties made any request to the Court to examine the Court Commissioner touching any part of the report nor the Court felt it necessary to examine him. The learned Counsel for the appellants contends that the report of the Commissioner could not become evidence unless he was examined and the report was proved by him. This argument is against the specific provisions of Order 26 Rule 10 C.P.C. Therefore, I do not find any substance in the contention of the learned Counsel. As such, no question of law is involved in the present Appeal. 5. The Appeal stands dismissed. 6. As the Appeal is dismissed, C.A. No.1767 of 2007 for stay does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)