IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 74 OF 2010 YESHWANT T. VAST (SINCE DEC.) THROUGH LR'S ... Appellant Versus SHRI. KRISHNA N. GANJEKAR ... Respondent Mr. P. Rao, Advocate for the appellants. Coram:- A. P. LAVANDE, J. Date:- 17th January, 2011 P.C. Heard Mr. Rao, learned Counsel for the appellants. 2. By this Second Appeal, the appellants take exception to the judgment and decree dated 9th April, 2010 passed by the District Judge-II, South Goa, Margao in Regular Civil Appeal No.64/2009 allowing the appeal against the judgment and decree dated 27th February, 2009 passed by the Civil Judge, Junior Division, Quepem in Regular Civil Suit no.6/2003/B by which the trial Court partly decreed the suit filed by the appellants herein. 3. The appellants filed the above suit seeking the following reliefs: (a) That the plaintiff be declared as the owner in possession of the said property as described in para 4 of the plaint. (b) That by an order and decree in the nature of mandatory injunction the defendant be directed to remove the septic tank constructed inside the suit property build in an area admeasuring 58.00 sq.mts. and restore the land to its original position. (c) That by an order and decree in the nature of mandatory injunction the defendant be directed to demolish the portion of building constructed on suit access keeping an access of 4.00 mts wide as per the consent decree before Mamlatdar Quepem. (d) That the defendant be directed to pay the damages for illegally occupying the suit property for amount of Rs.500/- per month from the date of construction of septic tank till the final disposal of the suit. 4. The trial Court by judgment dated 27th February, 2009 partly decreed the suit. The trial Court granted reliefs (a), (b) and (d). The defendant preferred an appeal to the District Court, which was made over to the Additional District Judge-II,who by the impugned judgment and decree, allowed the appeal. The lower appellate Court held that the reliefs claimed in prayer clauses (a) and (c) were barred by limitation and that the plaintiff had not proved that the defendant had encroached upon his property and consequently, dismissed the suit. 5. Mr. Rao, learned Counsel for the appellants submitted that the learned trial Court had correctly appreciated the evidence led by the parties and more particularly, the evidence of expert-DW2 and had come to the conclusion that the defendant had encroached upon the property of the plaintiff and had carried out construction. Learned Counsel further submitted that the lower appellate Court without any good reason interfered with the said finding and non-suited the plaintiff. He further submitted that since the matter pertains to encroachment, the lower appellate Court ought to have appointed Commissioner although no specific prayer was made to that effect by the plaintiff and such an exercise can even be undertaken in Second Appeal as has been held by this Court. He, therefore, submitted that the impugned judgment and decree deserves to be quashed and set aside. 6. Having heard learned Counsel for the appellants and having perused the record, I do not find any ground to interfere with the impugned judgment and decree. In my opinion, the lower appellate Court on the correct appreciation of the evidence led by the parties, has come to the conclusion that the plaintiff has failed to prove that the defendant has carried out construction in the property of the plaintiff bearing Survey No.518/4. In my opinion, the lower appellate Court has correctly appreciated the evidence of two experts examined by the plaintiff and the defendant in support of their rival claims set up in the plaint and written statement. 7. In so far as the submission of Mr. Rao that this is a fit case in which this Court should appoint Commissioner to find out if there is encroachment is concerned, I am not inclined to entertain this prayer at this stage in as much as the plaintiff had ample opportunity to make such request either during the course of trial or at least during the pendency of the appeal. The appellant / plaintiff having chosen not to seek appointment of the Commissioner and more particularly, both the parties having led evidence of experts regarding encroachment, I am of the considered opinion that this is not a fit case in which this Court should entertain such a request for appointment of the Commissioner at this stage. 8. It is axiomatic that the appeal under Section 100 can be only entertained if the appellant is able to make out a substantial question of law as has been held by the Apex Court in a catena of decisions and unless substantial question of law is made out by the appellant, there is no question of even admitting Second Appeal. In my considered opinion, the evidence led by the parties has been properly appreciated by the lower appellate Court. No substantial question of law is involved in the appeal. Hence, the appeal is dismissed. A. P. LAVANDE, J. SMA