1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.864 OF 2009. Ambubai W/o Sureshrao Pawatekar ... Appellant. Versus Kisanrao S/o Limbaji Kadam and others ... Respondents. ... Mr.H.V.Tungar, advocate for the appellant. ... CORAM : V.R.KINGAONKAR,J. Date : 01.12.2009. PER COURT 1. Heard learned counsel. 2. The plaintiff filed suit for removal of encroachment to the extent of four (4) gunthas land alleging that his land bearing S.No.122/A, admeasuring 2 hectares 15 Ares was encroached over by the defendants to the extent of four (4) 2 gunthas area. The trial Court held that the encroachment was not proved. The plaintiff sought reliance on the measurement map drawn by PW 2 Shital Sonawane. The trial Court held that the report of Court Commissioner, namely, Shri M.G.Deshpande, advocate indicated existence of a middle Bandh. The middle Bandh was found to be oF 5 ft. in width. Obviously, due to existence of the middle Bandh, there was no likelihood of encroachment from western side. The version of PW 2 Shital indicated that in his map (Exh.102), the portion occupied by middle Bandh was shown as encroachment. Hence, the report of PW 2 Shital and the map (Exh.102) was not believed by the trial Court. The first appellate Court rendered concurrent findings while dismissing the appeal (RCA No.121/2007). It is argued by learned counsel for the appellant that perverse findings have been rendered by the Courts below and some of the admissions of PW 2 Shital as well as PW 1 Ambubai (plaintiff) are misread. It is also submitted that report of the Court Commissioner (Exh.35) is also misread by the trial Court and the first appellate Court. I find it difficult 3 to countenance the arguments of Mr.Tungar. 3. On perusal of the judgments of the Courts below, it can be gathered that the allegations about the encroachment are not accepted for the reason that PW 2 Shital indicated portion of middle Bandh as the encroached area, whereas the existence of middle Bandh since long many years is brought on surface of the record. Moreover, it was specifically stated by PW Ambubai (plaintiff) that there is no middle Bandh in existence between the lands of the parties. This part of her statement was found to be untrue. Needless to say, it is on the basis of appreciation of the evidence that the Courts below have non-suited the appellant (plaintiff). No substantial question of law is involved in the Second Appeal. The Apex Court in "Gurdev Kaur and others Vs. Kaki and others" AIR 2006 Supreme Court 1975, held that the findings of facts even though may be grossly incorrect, should not be interfered with while considering the Second Appeal. The Second Appeal is outside the scope of Section 100 of the C.P.C. Hence, it 4 is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa86409