1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.166 OF 2009 WITH CIVIL APPLICATION NO.498 OF 2009 Shri Narayan Hari Mhatre since .... Appellants deceased thru his Lrs Vs. Shri Bharat Moreshwar Raut & Ors. .... Respondents Ms. Gauri Godse, Advocate for appellants. Mr. Ajay B. Rai i/by Mr.S.N. Joshi, Advocate for respondents. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 1st July, 2009 P.C. 1. The appellant herein seeks to assail by this Second Appeal, concurrent findings of the Courts below in the suit filed by them for declaration of their title to the suit property and permanent injunction to restrain the respondents from encroaching upon the property. By the impugned judgment and order, the first Appellate Court dismissed the appeal against the judgment and decree of the trial Court dismissing the suit. 2. The facts alleged by the appellant in his plaint, stated in brief, are that the appellants are owners of the land bearing survey no.84, Hissa no.11, admeasuring 33 R. and survey no.84, Hissa no.12, admeasuring 26 R. situate at Kudan village. The respondents are owners of the land at survey no.84, Hissa no.7 admeasuring 21 R., which is situate towards the eastern side of survey no.84, Hissa no.12 and Northern side of survey no.84, Hissa no.11. The respective lands 2 of the parties were surrounded by fencing. On 24th April 2000, the respondents tried to encroach upon the appellants' land by removing their fencing. Respondents then once again on 31st May 2001 tried to encroach upon the land of appellants to the extent of 5 gunthas by removing old fencing and by putting up wire fencing. The attempt was successfully resisted by the appellants. Thereafter the appellants filed suit for declaration of their title in respect of the two lands and for permanent injunction to restrain the respondents from encroaching upon the suit land. 3. The respondents resisted the suit by denying the allegations of the appellants. They contended that the appellants have shown false boundaries of their property and also produced false map on record. The respondents contended that there is no fencing as pleaded by the appellants around their land. They further contended that Hissa no.7 is not situate towards Eastern side of the appellants' property, but is situate towards Northern side. The respondents on the contrary alleged that it was the appellant who had tried to grab some portions of their land but could not succeed. Respondents claim to have erected their wire fencing in the month of April 2000 as per the boundaries lay down. The trial Court after appreciation of the evidence held that the respondents had already fixed their fencing on the border of their land in April 2000 and the appellants had failed to establish that on 31st May 2001, there was an attempt on the part of respondents to encroach upon 5 gunthas of land as alleged. It was further held that the appellants had tried to encroach upon the land at survey no.84, Hissa no.7. With this finding, the trial Court dismissed the suit. The 3 findings were confirmed by the appeal Court. These concurrent findings are seen to be completely supported by the evidence on record. The appellants' examined appellant no.3 and three witnesses in support of their case, whereas respondents examined respondent no.1. There was Commissioner appointed to visit the suit property. The parties also relied upon the report of the Commissioner at Exhibit 22. The trial Court disbelieved the witnesses of the appellants on account of inconsistencies. The appellants though admitted that they were in possession of a map drawn by T.I.L.R., failed to produce the same. They relied only upon the gat map on which the land attempted to be encroached upon 5 gunthas was shown by red boundaries. As against this, the respondents produced extract of entire survey no.84 as also the gat map of survey no.84. 4. Ms.Gouri Godse, the learned counsel for the appellants vehemently submits relying upon report of the Court Commissioner and the rough sketch accompanying that the same proves the fact of encroachment. She submits that the rough sketch shows poles of the fencing being removed and thrown around. However, the report of the Commissioner and the rough sketch annexed thereto can hardly establish the identity of the encroacher. Thus, it is seen that the concurrent findings arrived at,by both the Courts below are supported by the evidence led by the parties. There is no need to interfere with the concurrent findings. There is no substantial question of law arising for the consideration of the Court. Hence, the Second Appeal is dismissed. 4 5. In view of dismissal of Second Appeal, the Civil Application No. 498 of 2009 does not survive, the same is accordingly disposed off. (Smt.R.P. SondurBaldota,J.)