1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1228 OF 2004 Office notes, office memoranda of Corum, appearances, Court’s orders or directions and Registrar’s orders. Court’s Judge’s orders. 1. Heard Shri. R.M.Sharma, counsel appearing for appellant and Mrs. Ansari, counsel appearing for respondent no. 1 / Caveator. 2. Both counsels taken me through the Judgments of trial court, so also first appellate court . The main crucial question as arising in this case, as held by both courts, is whether the portion of 15 ft. x 7 ft. admeasuring 105 Sq. Ft. is part of G.No. 23 or G.No. 25. It is case of the present plaintiff that it is part of his property and as such he is entitled to decree of possession and 2 mesne profit . It is no more disputed that original G.No. 23 is owned by original plaintiff/appellant. 3. The trial court in para no. 9 has rightly observed that the evidence of P.W. 2 Pundlik and P.W. 3 Ashok have been assailed on 2 points, firstly that no notices were given to defendant nos. 1 and 2 before measurement and secondly that the measurements were not carried out as per rules laid down in the Manual. In para no. 9 of Judgment, trial court considered aspect relating to service of notice, when P.W. 2 Pundlik carried out measurements. But, other aspects were not considered. On the other hand, first appellate court while deciding R.C.A. No. 137 of 1997 on 11/10/2002 has discussed the evidence and circumstances in para nos. 16 to 22. Thus, it is pointed out that though both P.W. 2 Pundlik and P.W. 3 Ashok, who were Cadestral Surveyors working with District Inspector of Land Records had measured the lands. So far as the 3 measurement by P.W. 3 Ashok is concerned, he had not given notice to concerned parties and there is specific admission by him that he had given only notice to plaintiff and nobody else. It has also been brought on record that the disputed portion is a small portion and question is whether it is part of G.No. 23, which was earlier S. No. 16 or G.No. 25 which was earlier S.No. 17/2. P.W. 3 Ashok admitted in cross examination that he did not refer to the 7/12 extracts. He relied on the Tipans of 1333 Fasli ( 1942 A.D. ) and in the original Tipan Map, existence of Bhokar – Kinwat road was not shown. It was subsequently constructed. He also could not point out how much land was acquired for Market committee and how much land was acquired for Bhokar – Kinwat road. The land under measurement was developed by different persons and there were several constructed houses standing in the land and that had become an obstacle in using Plain Table method for measuring the lands. There is 4 discussion regarding same in para no. 19. There is also panchanama Exh. 109, which shows that in G.Nos. 23 to 25, thee were several constructed houses and, therefore, the Surveyor could not complete measurements by means of Plain Table method on 19/11/1991. On next day, the Surveyor returned and used method of super imposing Tipan for fixing boundaries of G.No. 22. It is also admitted that city survey record was not used though city survey was carried out in the year 1971. It is also admitted that original S.No. 16 was divided into S.No. 16/1 and S.No. 16/2 and there were no separate Tipan in respect of division. The only basis was the Tipan of 1333 Fasli ( 1942 A.D. ) and thereafter there were several changes in the situation, acquisition of lands for road and also of market yard. 4. In para nos. 20 and 21, evidence of P.W. 2 Pundlik, another Cadestral Surveyor is discussed in detail and it is also brought on record that said 5 difficulties were also faced by P.W. Pundlik. It is specifically admitted by P.W. 3 Ashok that thee were no separate Tipans of pot hissas. . Then, question was raised how P.W. 2 Pundlik could fix boundary marks of S.No. 16/2 and S.No. 17/2. The area in dispute is very small and admittedly Plain Table method could not be used. It is also admitted by P.W. 2 Pundlik that he could notice only one fix point of G.No. 25 and admitted that at least 2 fix points are necessary for measurements. The consolidation record did not contain record of Pot hissas of S.No. 16 and S.No. 17. Thus, P.W. 2 Pundlik, Cadestral Surveyor used the measurements carried out in the year 1971 as basis. So, considering the detail discussion made by the learned District Judge, Nanded in his Judgment, in my considered opinion, all points are adequately considered. It can not be said that said finding of fact is in any way perverse, unreasonable and not based n record. It is not the case that any evidence was 6 not considered though admissible or inadmissible piece of evidence was considered. So, considering the circumstances, no substantial question of law is raised. The Appeal deserves to be dismissed and accordingly it stands dismissed. DATE : 02/07/2009 [ P.R. BORKAR ] JUDGE knp/SA1228.04 7 8 9 10 11 12 13 14 15