1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 508 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. PV.Mandlik, Advocate for the appellant. ............................. CORAM : S.V. GANGAPURWALA, J. DATE : 16/11/2010 PER COURT : 1. The present Appeal is by the original plaintiff, who had filed Suit for recovery of possession of the encroached area from the defendants. 2. The Trial Court decreed the Suit. The appellate Court in Appeal filed by the defendants, set aside the Judgment and decree of the Trial Court and dismissed Suit. The plaintiff has assailed the said Judgment of the lower appellate Court in the present Appeal. 3. I have heard Mr. P.V. Mandlik, the learned Sr. Counsel for the appellant. The learned counsel contended that the plaintiff has proved encroachment committed by the defendants by the 2 evidence of Cadestral surveyor, who has clearly deposed about encroachment committed by the defendants. According to the learned counsel, it is undisputed that the appellant is the owner of S.No. 32/2/1 admeasuring 2 Acres 1 guntha and it has also been proved by the evidence that the defendants have damaged boundary and have encroached in the premises. According to the learned counsel, the lower appellate Court has erroneously held that the plaintiff is not the owner of the suit property and that no encroachment has been committed. 4. With the assistance of the learned counsel, I have gone through the Judgments delivered by both the Courts. 5. Though the factum of ownership of the plaintiff is not disputed, even if it is held that the plaintiff is the owner of 2 Acres 1 gunthas of the land from S.No. 32/2/1 still the factum of encroachment can only be proved by measurement of Cadestral Surveyor. The defendants are owners of S.No. 32 and 34. The Cadestral Surveyor, who has allegedly measured the land, had not issued any notice to the defendants prior to measurement nor the adjacent lands of the defendants were measured. In such circumstances, the said measurement could not have been relied upon as it has been rightly held by the lower appellate Court. The lower appellate Court on consideration of the said fact and also on consideration of the evidence 3 that the boundary marks are intact, has held that the plaintiff has failed to prove the alleged encroachment. The measurement was carried out only on the basis of the record of S.No. 31 without the record of sub divisions of S.No. 31. 6. The view taken by the lower appellate Court is a possible view. The findings can not be said to be perverse. In such circumstances, no substantial question of law arises. As such, the Second Appeal stands dismissed, however with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 508.10