{1} IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.354 OF 1991 Arun Ramchanra Mahajan R/o Osmanabad. Appellant. VERSUS Ramchandra Ganpati Chaudhari R/o Osmanabad. Respondent. *** Shri Rahul P.Dhase, advocate holding for Shri A.H.Vaishnav, advocate for appellant Shri B.R.Sontakke, advocate for respondent. *** Coram : K.U.Chandiwal, J. Date: 25th June 2009. ORAL JUDGMENT: 01- The concurrent findings recorded against the plaintiff in RCS No.18/1974 and RCA No.89/1983 are assailed in this Second Appeal. It was a case where the plaintiff sought removal of encroachment and possession of encroached portion of 13 R in land S.No.205 and 96 R in S.No.207 having caused by the owner of land S.No.206 the defendant Ramchandra. The appeal is admitted on 26/08/1991 without formulating any substantial {2} question of law. 02- For the purposes of dealing with the controversy following substantial question of law can be possibly framed. i- Whether the inability expressed by the lower appellate Court to decree the suit because owner of sub- divisions making encroachment is not named and fixed and there is no definite encroachment expressed, is a correct approach? 03- The respective ownership of the plaintiff over land S.No.205 and S.No.207 is not in controversy. The controversy revolves to ownership of land S.No.206. It is a matter of record that defendant Ramchandra has purchased part of land S.No.206 from one Prabhakar Mahajan distant relative of the plaintiff. It is established during evidence by the defendant that land S.No.206 is forming part of three sub-divisions namely 206/1, 206/2, and 206/3. The Cadastral Surveyor did not issue notice to owners of other sub- divisions. It was only the defendant who was served. The defendant has signed on the panchnama also. Thus the other owners of land S.No.206 were unaware of measurement. This was a major jolt for the plaintiff in the matter. 04- The Cadastral Surveyor did not venture to mention as to who is the owner of land towards West and North of land S.No.207 and towards South of land S.No.205. He was unable to give exact length of encroachment {3} on the property and he was in fact not sure as to who actually has caused the encroachment over the plaintiffs land and on what side. Thus, more particularly, as the Cadastral Surveyor Mr.Jadhav has accepted that land S.No.206 comprises of pot-hissa [sub divisions]. 05- The learned first appellate Court considered the map at Ex.46 to be dated 21/12/1973 which shows encroachment to the extent of 96 R in land S.No.207. While the map Ex.47 dated 21/12/1973 show encroachment of 13 R in land S.No.205. After the above referred measurement when the evidence was recorded, the learned judge decreed the suit against the defendant directing the defendant to hand over possession of the encroached portion to the plaintiff. However since the matter was taken to district court, said judgment was set aside and the Court of first instance was directed to get the lands remeasured by appointing TILR as court commissioner. It is in the situation the lands are remeasured and after remeasuring the lands, the map is produced by the Commissioner along with panch and report, which is in the file. 06- Though the notes of map prepared by Mr.Jadhav as stated earlier, show that there was encroachment of 01 H. 10 R by owner of land S.No.206 and on land S.No.207 and it also shows that there is encroachment on land S.No.205 by S.No.206 to the extent of 05 R. However it could not be {4} carved out as to who was author of such encroachment. The Cadastral Surveyor was categorical in stating that he was not sure as to the measurement made by him is correct or not. He has no reason to go through the earlier record of measurement in respect of land S.No.25, 206, and 207. It is in this scenario the Court found it difficult as from which portion of land S.No.206 either land S.No.206/, 206/2 and 206/3 there is encroachment and by whom and the person responsible to give possession to the plaintiff. Consequently the first appellate court found that for removing encroachment of 05 R by land S.No.206 in land S.No.205 cannot be removed unless the pot-hissa [sub divisions] encroachment is defined. 07- The other difficulty that is surfaced in the matter is the plaint disclosing the encroachment to be 96 R in land S.No.207 while Ex.46 the TILR map supports the same, but the subsequent map drawn by the sub- ordinate Officer shows the encroachment to be 01 H 10 R. Thus this is the area more than what is said in the plaint. The area of different encroachment in the land S.No.207 has gone unexplained. The first appellate Court found that the identity of 96 R out of the encroached portion has been drawn by the TILR for the purposes of giving the possession to the plaintiff could not be possibly done. 08- These observations of the first appellate Court cannot be said to {5} be erroneous. The appeal lacks merit. The substantial question of law is answered in the negative. The appeal dismissed. No costs. [K.U.CHANDIWAL] JUDGE /mda/0609/fa354.91