: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.142 OF 2004 SECOND APPEAL NO.142 OF 2004 SECOND APPEAL NO.142 OF 2004 WITH WITH WITH CIVIL APPLICATION NO.134 OF 2004 CIVIL APPLICATION NO.134 OF 2004 CIVIL APPLICATION NO.134 OF 2004 Suresh Ramchandra Chavan & Anr. ...Appellants V/s. Shankar Dattatray Chavan & Ors. ...Respondents Mr.Rajesh Chaurasiya with Mr.Yogesh Nakhwa, Advocates, for the Appellants. Mr.I.R. Kulkarni and Mr.D.S. Joshi, Advocates, for Respondent Nos.1 to 3. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 12TH MARCH, 2008. DATE : 12TH MARCH, 2008. DATE : 12TH MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate for the appellants-plaintiffs. The plaintiffs filed a suit for removal of encroachment allegedly made by the respondents to the extent of 4 ft. x 61 ft. The Trial Court decreed the suit and the Appellate Court has interfered and has set aside the said Decree. 2. The submission of the learned Advocate for the appellants is that even the report of the Commissioner shows that during the pendency of the suit, a wall was constructed by the respondents-defendants by encroaching upon the property of the : 2 : appellants-plaintiffs. It is submitted that in view of what was mentioned in the Commissioner’s report, it was obvious that the wall was constructed after carrying on encroachment on the property of the appellants-plaintiffs. He submitted that the Appellate Court has committed an error by holding that the appellants have failed to prove their ownership and possession over the suit property. 3. I have carefully considered the submissions. The Appellate Court found that the surveyor who was appointed as the Court Commissioner, did not show encroachment on the sketch prepared by him in terms of the allegations made in the plaint. In fact, in the evidence, the Court Commissioner accepted that the house of the defendants-respondents has been constructed in their own property. In view of what is stated by the Court Commissioner, on whose report the appellants are relying upon, the Appellate Court held that the case of encroachment made out by the appellants-plaintiffs in the plaint has been falsified. There is no scope to upset the said finding. 4. Now coming to the issue regarding encroachment made by construction of a wall during the pendency of : 3 : the suit, the Appellate Court has referred to clause (5) of the Commissioner’s report which records that the Panch witnesses stated that in the year 1989-90, a compromise was brought about between the appellants and the respondents and, pursuant to the compromise, the said wall was constructed. The Appellate Court found that the said wall was constructed during the operation of order of temporary injunction passed by the Trial Court. The Appellate Court found that though the wall was constructed in the year 1989-90, amendment was applied for by the appellants only in the year 1993. By the amendment carried out in the year 1993, the appellants alleged that a wall was constructed by the respondents-defendants in the year 1989. The Appellate court found that for such a long time there was complete inaction on the part of the appellants as regards the said wall constructed by the respondents. That is why the Appellate Court accepted the plea raised in the written statements of the respondents as regards the settlement which finds support from the evidence. Therefore the Appellate Court has interfered with the decree passed by the Trial Court as regards removal of the encroachment made by construction of the said wall. 6. Considering the conduct of the : 4 : appellants-plaintiffs and the report of the Court Commissioner, there was every justification for the Appellate Court to record the said finding. At this stage it must be also noted that in paragraph No.28, the Appellate Court has recorded a finding that the witness examined by the plaintiffs accepted that he did not raise any objection to the map drawn by the Court Commissioner which does not support the case made out by the plaintiffs in the plaint as originally filed regarding the encroachment. 7. In view of the findings of facts recorded by the Appellate Court based on appreciation of oral and documentary evidence, no case for interference is made out. No substantial question of law arises. Second Appeal is accordingly dismissed with no orders as to costs. 8. In view of dismissal of the Appeal, Civil Application No.134 of 2004 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]