1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. S.A.NO.627 OF 2005 Namdeorao Dadaraoji Rakhe ..vs.. Sau.Tanabai Pandurang Rumale ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's directions and Registrar's order. orders. -------------------------------------------------------------------------------------------------------------------------- Coram : C.L.PANGARKAR, J. Dated : 25th August 2009. 1. Heard Mr.S.C.Bhalerao, learned counsel for the appellant and Mr.A.V.Bhide, learned counsel for the respondent. 2. This appeal is filed by the original plaintiff, who had lost in both the courts below. 3. The plaintiff had instituted a suit for removal of encroachment and possession of encroached portion. The defendant had contested the suit filed by the plaintiff. The trial court after consideration of the evidence of the surveyor had 2 dismissed the suit holding that the evidence tendered by the plaintiff was not sufficient to hold that there was an encroachment. The appellate court also concurred with the findings of the trial court. 4. The learned counsel for the appellant submits that in the instant case the evidence has not been properly appreciated by the trial court at all. He submits that the trial court had rejected the evidence on the ground that copy of the map known as ‘A’ was not filed on record, and simply because ‘C’ copy was filed, copy-A could not be said to be proved. 5. After having gone through the judgment of the trial court, I do not find that the trial court observes like that. What the trial court observes is that the map of the measurement cannot be relied upon because of the fact that the surveyor had to bring with him the rough note and rough map drawn in order to prove the map filed on record. It cannot be disputed that in order to prove the said map it was incumbent on the part of the surveyor to have brought with him the rough map drawn by him and rough notes maintained by him. Without those, copy-C filed in the suit could not have been proved at all. I, therefore, do not see any perversity in the findings recorded by the trial court. 6. Shri Bhalerao, learned counsel for the appellant submits 3 before me that the learned judge of the trial court should have in that case appointed the Commissioner in the matter and should have obtained the map, as is held in a case reported in 2004(2) Mh.L.J.722 (Kashinath Chindhuji Shastri, ..vs.. Haribhau Nathuji Bawanthade). The decision has no bearing on the case at hand. In the instant case, the court does not reject the measurement on the ground that the measurement was not carried out properly. A necessity to appoint the commissioner would arise only when it is found prima facie that measurement as carried out by the measurer was not proper and therefore there was a need to appoint the Commissioner. If there are two maps which may not tally with each other and the necessity to appoint the Commissioner would arise to have correct picture before the court. The learned judge of the first appellate court also found that the plaintiff has failed to establish from evidence of the surveyor that there was an encroachment. I do not find that the observations made by the learned judge of the first appellate court were in any way wrong. There is no substance in the appeal. No substantial question of law is involved in the matter. The appeal is dismissed in limine. JUDGE. chute