1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Second Appeal No.315/2010 Shalik Demodooji Timande and others Vs. Mahadeo Sitaram Timande and others. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- C ORAM : SMT. VASANTI A NAIK, J. DATED : 15th JULY, 2010. 1] Heard Mr. Purohit, learned counsel for the appellants. 2] The appellants are the original plaintiffs. The suit was filed by the plaintiffs for removal of encroachment. According to the plaintiffs, the defendants had encroached upon 0.05 H.R. of the land belonging to the plaintiffs and which was lying on the eastern side of their field. The plaintiffs had got their land measured from a Government Surveyor and a map was also produced by the plaintiffs on record. The plaintiffs' sought for possession of the land on which the defendants had allegedly encroached upon. 2 3] The defendants filed a written statement and denied the claim of the plaintiffs. They denied that they had encroached upon the land of the plaintiffs. They pleaded that the plaintiffs had no right to claim possession and ownership of the Government land which allotted to the defendants. They relied on a sale deed executed by one Deshmukh in respect of the extended area. They sought for dismissal of the suit. 4] Both the Courts, on appreciation of the evidence on record, held that the plaintiffs had been unsuccessful in proving that the defendants had made encroachment on the land belonging to the plaintiffs. The Courts, therefore, held that the plaintiffs were not entitled to the decree for possession and mesne profits. The Courts considered the evidence of the Government Surveyor and specially the admissions in his cross-examination, which clearly showed that he had not prepared the measurement map as per usual practice and technical method and had only 3 considered the 7/12 extract and the map of the year 1992-93 to prepare the measurement map annexed to the plaint. The Courts also considered the oral evidence of the plaintiffs and the defendants to dismiss the case of the plaintiffs. 5] The only submission made on behalf of the appellants that it was obligatory on the part of the Trial Court and the First Appellate Court to appoint the Court Commissioner in this case under the provisions of Order XXVI Rule 9 of the Code of Civil Procedure though no application under the said provision was filed before the Court either by the plaintiffs or the defendants is liable to be rejected for the reason that in each and every case of encroachment, it is not obligatory on the part of the Civil Court to suo motu appoint the Commissioner under the provisions of Order XXVI Rule 9 of the Code of Civil Procedure. The judgments reported in 2008(8) S.C.C. 671 (Hariyan Vs. Shanti), 2004(4) Mh.L.J. 213 Yeshabrao Vs. Maroti, 2004(3) Mh.L.J. 4 724(Sukhdeo Vs. Wamanrao),2009 (4) Mh.L.J. 371 (Girish Vs. Nimbaji) are not applicable to the facts of this case and do not support the submissions made on behalf of the appellant as in all these reported cases either the plaintiff or the defendant had filed an application under Order XXVI Rule 9 of the Code of Civil Procedure for the appointment of the Commissioner and in the facts and circumstances of those cases, the Hon'ble Supreme Court and this Court had observed that it was necessary for the Court to have appointed the Commissioner under the provisions of Order XXVI Rule 9 of the Code of Civil Procedure. 6] Since the findings recorded by both the Courts are pure findings of facts and since they do not give rise to any substantial question of law, the Second Appeal fails and is dismissed with no order as to costs. JUDGE Ambulkar.