1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 344 OF 2007 Sau Sumanbai w/o Dashrath Ushir ........Appellant versus Jagannath Pandurang Kuyate & ors........ Respondents. Mr. M.M. Sathaye adv. for the Appellant None for the respondents CORAM: A. P. DESHPANDE, J. DATED : 18th MARCH, 2009. P.C.: 1. This second appeal is directed against the judgment and decree passed by the first appellate court dismissing the appeal and thereby confirming the judgment of the trial court which in turn dismissed the suit filed by the appellant. The appellant is the owner of gat no.389 whereas the respondent is the owner of gat no.407. Both the agricultural lands are adjecent to each other. There crept up a dispute when the appellant tried to cultivate the land near the boundary of the two fields. The appellant got measured his land and as the measurement reveals some encroachment, suit came to be filed. It is relevant to note that only plaintiff's land was measured. There was no simulteneous measurement of the land of the plaintiff and the defendant so that it could be validly claimed that the defendant 2 had encroached on the land of the plaintiff at a given point. Before the first appellate court a prayer was made during the course of argument, for remanding the matter to the trial court with a view to have a joint measurement of the adjoining lands owned by plaintiff and the defendant respectively. However that request was turned down on the ground that the subject matter of the dispute is trifle in as much as the dispute pertains to 5 R land only. The learned counsel for the appellant in all fairness submits that the dispute really pertains to 0.5 R land. The learned counsel has submitted that there ought to have been a joint measurement and the first appellate court should have remanded the matter for leading additional evidence for that a proper case ought to have been made out touching the requirement of Order 41 Rule 27 of CPC. 2. During the pendency of the suit, the defendant has also got his land measured which reveals an excess land and also revealed an encroachment by defendant. Yet this time again both the lands were not measured. Hence it was almost impossible to record a finding that the defendant has encroached on the plaintiff''s land. 3. Perused the record. No substantial question of law emerges for consideration. Hence second appeal is summarily dismissed. (A. P. DESHPANDE, J.)