1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.474 OF 2009 Sk. Lateef s/o Sk. Wazir, since deceased, through L.Rs.: 1A Hasina d/o Lateef Shaikh, age: 50 years, Occ: Household, R/o Mamurabad, Tq.Khultabad, District Aurangabad. 1B Sharifa d/o Lateef Shaikh, age: 48 years, Occ: and R/o as above. 1C Gujar d/o Lateef Shaikh, age: 46 years, Occ: and R/o as above. 1D Isaq s/o Lateef Shaikh, age: 45 years, Occ: Agril., R/o as above. 1E Gulshan d/o Lateef Shaikh, age: 40 years, Occ: Household, R/o as above. 1F Salima d/o Lateef Shaikh, age: 38 years, Occ: and R/o as above. 1G Ainoor d/o Lateef Shaikh, age: 35 years, Occ: and R/o as above. 1H Shabnoor d/o Lateef Shaikh, age: 32 years, Occ: and R/o as above. 1J Sadik s/o Lateef Shaikh, age: 28 years, Occ: Agril., R/o as above. 1K Mubarak s/o Lateef Shaikh, age: 25 years, Occ: and R/o as above. Versus 2 1 Sk.Rashid s/o Sk.Wazir Patel (Abated as against appellant no.1 as per Court's order dated 12.09.2007) 2 Sk.Rauf s/o Sk.Rashid, age: 35 years, Occ: Agril., R/o as above. 3 Sageer s/o Sk. Rashid, age: 25 years, Occ: Agril., R/o as above. Respondents Mr.P.F.Patni, advocate for appellants. Mr.Harshad Joshi, advocate holding for Mr.S.V.Gangapurwala, advocate for Respondents No.2 & 3. CORAM: R.M.BORDE, J. DATE : 14th October,2009. P.C.: 1 This is an appeal by original plaintiff raising exception to the judgment and decree passed by Additional District Judge, Aurangabad in Regular Civil Appeal No.249/2000 decided on 29.06.2002. 2 Plaintiff presented suit claiming removal of encroachment over an area to the extent of 24 ares alleged to have been committed by the defendants. It is the contention of plaintiff that he had applied to the D.I.L.R. for fixation of boundaries of his land i.e. G.No.123. Accordingly, surveyor was appointed to measure the land, who after measurement of the land, has fixed boundaries of land G.No.123. However, during measurement, it is found that the possessor of land G.No.122 has committed encroachment over an area to the extent of 24 ares belonging to the plaintiff. As such, suit is filed relying upon the map and 3 measurement alleged to have been conducted by the surveyor in pursuance to the application presented by the plaintiff. 3 Defendants appeared and controverted the contentions raised by the plaintiff. Defendants have denied the contention in respect of alleged encroachment committed by them, as claimed by plaintiff. 4 After considering the rival contentions raised by respective parties, the trial Court passed decree in favour of the plaintiff. 5 Defendants, being aggrieved by the judgment and decree passed by the trial Court, preferred an appeal bearing Regular Civil Appeal No.249/2000, which came to be heard and disposed of by Additional District Judge, Aurangabad, who was pleased to allow the same by judgment and decree dated 29.06.2002. 6 I have perused the judgment delivered by first appellate Court. It transpires, on perusal of the judgment as well as considering the testimony of surveyor Shri Ghule, that the surveyor was appointed to fix boundaries in pursuance to the application tendered by plaintiff. Accordingly, surveyor measured land S.No.123. The surveyor, although, has deposed about the alleged encroachment made by defendant to the extent of 24 ares, however, it does not transpire that he has fixed boundaries of adjoining land /survey number. There is also no record to indicate that notice in respect of measurement was given to the defendants and in their presence land is measured. In the absence of specific evidence in respect of fixation of boundaries of land S.No.122 and 4 preparation of map, it cannot be conclusively said and more particularly in the absence of notice to the owner of adjoining land - defendants, that the defendants have committed encroachment, as claimed by the plaintiff. The view adopted by the first appellate Court is based on proper appreciation of evidence led by the parties. No substantial question of law arises for consideration in the appeal. 7 Appeal, therefore, stands dismissed. 8 Learned Counsel for appellants seeks leave to present fresh suit after securing fresh measurement from the surveyor. Appellants may do so, if permissible in accordance with law, no opinion is expressed in that regard. (R.M.BORDE) JUDGE ******* adb/sa47409