(1) SA. 30.1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 30 OF 1992 1] Shenfadu Goba Chaudhari age : 42 years 2] Babu Goba Chaudhari, age : 25 years, Both are agriculturists, residing at Kusumbe Bk., Taluka Raver, District:Jalgaon .. Appellants VERSUS Ramkrushna Lalsing Patil, age : 30 years, Occu.: Agri., residing at Kusumbe Budruk, Taluka : Raver, Dist. Jalgaon .. Respondent Mr. Sanket S. Kulkarni, Advocate h/f. Mr. V.T. Choudhari, Advocate for the appellants Mr. S.A. Kulkarni, Advocate for the Respondent CORAM : A.V. NIRGUDE, J. DATED : 31ST JULY, 2009 ORAL ORDER:- 1] The second appeal is filed against the concurrent findings mostly of facts, recorded by the Courts below, holding that the appellants-plaintiffs had failed to prove their case. (2) SA. 30.1992 2] The appellants-plaintiffs alleged that the respondent-defendant had made encroachment on their courtyard to the extent of 3ft X 27ft and also made encroachment at the Gram Panchayat road to the extent of 4ft. X 27 ft. The properties described in the pleadings are house properties in a village. The appellants-plaintiffs making these allegations, simply sought perpetual injunction to prevent the defendant’s encroachment instead of seeking removal of the encroachment and possession etc. I perused the record of the lower Court and found a rough sketch annexed to the plaint, showing the position of the appellants’ property, alleged encroachment made by the respondent-defendant and the respondent's property. In the sketch, the appellants also showed as to in what areas the respondent-defendant had made encroachment. . During the pendency of the suit, the appellants made an application for temporary injunction. The defendant denied the allegations and stated that he had not made any encroachment or attempted encroachment. At the request of the parties, it is seen, a Court Commissioner was appointed to visit the spot and draw a rough sketch. Such rough sketch is also on record. But the sketch does not prove the allegation of the appellants. Mainly on the basis of this rough sketch, the Courts (3) SA. 30.1992 below rejected the appellants’ case. It is thus clear that on facts, the appellants could not prove their case. At the admission stage the controversy that was held to giving rise to a substantial question of law, was in respect of an old document, the appellants placed reliance on. 3] The appellants have not produced or proved grampanchyat or revenue record of the measurements and boundaries of their properties. They produced on record an old document of 1939. This was a mortgage deed executed by the appellants’ grandfather in favour of the Village Co-operative Society. The trial Courts did not accept the document on record, mainly because the document was not produced from proper custody. The question, therefore, was whether the document was produced on record by proper custody. The answer, in my view, is in favour of the appellants. The appellants, apparently had proper custody of this document because, this document was executed by their grandfather and presumably had come back to the appellants’ grandfather, probably on redemption of the mortgage. In any case, this being a document of 1939 i.e. 30 years old, it could have gone on record easily. The lower Court’s refusal to include this document on record, in my view, was an error on his part. (4) SA. 30.1992 However, even this document does not help the appellants’ case. I went through this document also. The description of the appellants’ house property and the courtyard is not in dispute at all. The measurements and boundaries of the appellants’ property are mentioned in the plaint also. Even in the commissioner's measurements report, the description and boundaries of the appellants’ property are correctly noted. Thus, the description of the appellants’ property that appears in the mortgage deed, the plaint and the Court Commissioner’s report are similar. As said above, despite this, the Court Commissioner did not find any encroachment on the appellants’ property. The appellants alleged that the respondent made encroachment on their courtyard on East side. They said that this encroachment is 3ft. in width and 27ft in length. If this was true, then the courtyard of the appellants’ property would be seen reduced in size. But that did not happen. The appellants specifically mentioned that the courtyard of their house lying on east side has width of 22 ft. The appellants-plaintiffs alleged that due to encroachment of 3ft. width strip, the breadth of courtyard was reduced by 3ft. But the Court Commissioner, did not notice such reduction in the width of the courtyard. (5) SA. 30.1992 4] The appellants-plaintiffs specifically mentioned that there is an old road, having 8ft. Width running East-West. The appellants alleged that the respondent made encroachment on this road and thereby reduced the width of the road by about 4ft. The appellants, thus suggested that due to the encroachment on the road, the width of the road was reduced to 4ft. but the Court Commissioner did not notice such reduction in width. The Court Commissioner specifically mentioned that the road is of 8ft. 2” wide. Thus, despite the controversy regarding the admission of the old document of 1939, getting resolved the appellants have failed to make out a case. The Second Appeal should, therefore fail. 5] The Second Appeal stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp