1 S.A.No.84.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 84 OF 2009 Narayan S/o Nagoba Chavan, Age 67 years,Occu.Agril, Business, R/o Hardaf Taluka Hadgaon, District : Nanded. ...APPELLANT. VERSUS 1) Dattarao S/o Narayanrao Jadhav, Age : 80 years Occup: Agriculture, R/o Hardaf Taluka Hadgaon, District Nanded. And another ...RESPONDENTS. ... Shri.A.S.Deshmukh, Advocate for Appellant. Shri.P.V.Mandlik,Sr. Counsel instructed by Shri.Amol Gandhi,Advocate for respondent No.1 ... CORAM: SHRIHARI P.DAVARE, J. DATE : 19th JANUARY, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. Appellant is original - plaintiff and respondents are original defendants. 3. The parties are referred hereinafter as per 2 S.A.No.84.09 their original status. 4. The challenge in present Second Appeal is to the Judgment and Order dated 23.10.2008, rendered by learned District Judge-2, Nanded, in Regular Civil Appeal No. 19 of 2006, by reversing Judgment and decree passed by the learned Civil Judge (Junior Division), Hadgaon, on 21.01.2006 in Regular Civil Suit No. 23 of 2003. 5. The plaintiff herein filed suit before trial Court claiming recovery of possession of encroached portion of 69 R land of southern side, out of survey No.205/C(Total admeasuring 78 R) from defendants No.1 and 4 R land of North East corner out of survey No. 205/C from defendant NO. 2, both situated at village Hardaf, Taluka Hadgaon District Nanded. 6. In the context of alleged encroachment, plaintiff adduced evidence of P.W.3 Cadastral Surveyor Ram Siddamwar and the trial Court 3 S.A.No.84.09 believed testimony of the said witness and decreed the suit in favour of plaintiff. However, First Appellate Court while reversing the finding of trial Court observed that it was incumbent upon plaintiff to prove encroachment and for that purpose best evidence is that of Cadastral Surveyor, but the same is not reliable and does not inspire confidence to accept it and further observed that trial Court committed error in appreciating his evidence and consequently, quashed the Judgment and order passed by the trial Court. 7. Learned counsel for appellant Mr. Deshmukh urged that the First Appellate Court should have remanded back the matter and to appoint Court Commissioner for ascertaining alleged encroachment instead of allowing Appeal and dismissing suit. He further urged to remand the matter back to trial Court for that purpose. However, I am not impressed by said submission canvassed by the learned counsel for plaintiff, since evidence of 4 S.A.No.84.09 P.W.3 Cadastral Surveyor - Ram Siddamwar was best piece of evidence in respect of alleged encroachment, which was not found to be reliable by the First Appellate Court. Moreover, it is material to note that even the plaintiff has failed to prefer any application for appointment of Court Commissioner to inspect suit site to ascertain the alleged encroachment, before the trial Court as well as First Appellate Court, and the said inaction on the part of plaintiff speaks for itself. In fact, it was for the plaintiff to produce and adduce best possible evidence before Courts below and prayer made by plaintiff for appointment of Commissioner at the stage of Second Appeal cannot be acceded to, more particularly, in the light of evidence of P.W.3 Cadastral Surveyor - Ram Siddamwar and its appreciation by the First Appellate Court. 8. In the circumstances, no substantial question of law could be formulated and present Second Appeal lacks merit, and therefore, same stands 5 S.A.No.84.09 dismissed. Record and proceedings be sent to concerned Court. Sd/- [SHRIHARI P.DAVARE, J.] MTK