1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 314 OF 2002 Eknath S/o Genuji Adhav Died-through-L.Rs .. .. Appellant Versus 1. Vishwanath S/o Mahada Raskar Died-L.Rs Dagdu S/o Vishwanath Raskar and others .. .. Respondents Shri Y. S. Choudhari, Advocate h/f Shri S. S. Choudhary, Advocate for the Appellants. Shri A. P. Rajput, Advocate h/f Shri M. Y. Deshmukh, Advocate for the Respondent No. 1/3. CORAM : N. D. DESHPANDE, J. DATE : 15TH DECEMBER, 2009. ORAL ORDER : 1. Heard Shri Rajput, learned counsel holding for Shri Deshmukh, learned counsel for the respondent, who is opposing the admission of the second appeal stating that there is encroachment of 02R land as per the recent measurement by the District Inspector Land Records and the map which was relied by the learned Trial Court and the learned First Appellate Court. There are concurrent findings of both the Courts below in favour 2 of plaintiff/respondent. Therefore, Shri Rajput prayed for dismissal of second appeal. 2. Shri Choudhari, learned counsel holding for Shri S. S. Choudhari, learned counsel for the appellant requested for keeping back the matter. Request granted. [ N. D. DESHPANDE, J.] bsb/Dec.09 3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 314 OF 2002 Eknath S/o Genuji Adhav Died-through-L.Rs .. .. Appellant Versus 1. Vishwanath S/o Mahada Raskar Died-L.Rs Dagdu S/o Vishwanath Raskar and others .. .. Respondents Shri S. S. Choudhary, Advocate for the Appellants. Shri A. P. Rajput, Advocate h/f Shri M. Y. Deshmukh, Advocate for the Respondent No. 1/3. CORAM : N. D. DESHPANDE, J. DATE : 15TH DECEMBER, 2009. ORAL ORDER : 01. Heard Shri Chaudhary, learned counsel for the appellants. This second appeal is for admission. It is a dispute regarding encroachment of 02R land alleged by the plaintiff/respondent the owner of land Gat No. 361 and appellant/defendant who is owner of adjoining Gat No. 362. The suit was decreed in favour of the respondent No. 1 by the Trial Court to the extent of 02R, because he had recent measurement. Shri Choudhary, learned counsel for the appellants pointed out that both the Courts have elected to 4 accept cadestrial survey done at the instance of plaintiff which is the recent one, without taking into consideration the measurement done at the instance of the defendant. In fact, the dispute is about measurement and appears to be narrow. 02. There is no finding required for decision as to right to hold, possession and much is dependent on the measurement by the District Inspector Land Records who is the authority to measure the land and also to work out the encroachment if complained to the said office. Such dispute of encroachment of area is common dispute between land holders of the adjoining fields. So, only the decree of 02R for removal of encroachment is under challenge and, therefore, learned counsel for the appellant conceded on the point that no encroachment can be justified and the boundaries of the respective survey numbers are to be maintained and respected. 03. In that view of the matter nothing survives in the appeal as the substantial question of law and the decree for removal of encroachment will be subject to the actual measurement by the District Inspector Land Records of both the gat numbers i. e. gat No. 361 and 362, at the time of executing the decree at the instance of the plaintiff/respondent No. 1, so that there would be no further cause for parties to complain about the encroachment against each other. The parties are directed to remain present at the time of execution of decree by actual measurement as above on notice by District Inspector Land Records and the executing 5 Court. The boundaries shall be fixed accordingly in satisfaction of the decree in execution proceeding. With this observations to which both the parties agreed, the second appeal stands dismissed finally at the stage of admission. A decree be drawn in above terms for maintaining the boundaries of the respective gat numbers belonging to the parties concerned. The second appeal is accordingly disposed of. [ N. D. DESHPANDE, J.] bsb/Dec.09