(1) SA 910.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 910 OF 2008 Harischandra S/o Tukaram Shinde, Age : 40 years, Occu.: Agriculture, R/o. Thergaon, Taluka : Shirur Anantpal, District : Latur .. Appellant VERSUS Suresh S/o Venka Pete, Age : 50 years, Occu.: Agriculture, R/o : Thergaon, Tq. Shirur Anantpal, District : Latur .. Respondent WITH CIVIL APPLICATION NO. 13151 OF 2008 IN SECOND APPEAL NO. 910 OF 2008 Harischandra S/o Tukaram Shinde .. Applicant VERSUS Suresh S/o Venka Pete .. Respondent Ms. Geeta Deshpande, Advocate for the appellant/applicant Mr. S.M. Vibhute, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 14TH SEPTEMBER, 2009 ORAL ORDER:- 1] The appellant is seeking to challenge the concurrent findings of the Courts below that the appellant had failed to prove lawful possession of the disputed strip of land which lies between the appellant’s land and the respondent’s land. (2) SA 910.2008 2] The facts leading to the litigation are as under:- . The appellant’s land survey no.31, measures 74 R. It is his case that on the northern side of the land, a stream flows through his land. He said that beyond the stream there is a strip of land admeasuring 10 R, which is part of his land. He says he has about 12 trees in this portion of the land. He says the respondent, whose land survey no.30 lies to the north of his land, is trying to assert that the boundary between the lands is the stream and the strip of land and the trees standing on it is part of his land survey no.31. The appellant filed suit for perpetual injunction but he did not lead evidence to prove that his land is extended beyond the stream and so he could not prove that the 10R strip having trees which lied on the north of the stream is part of his land survey no.31. In view of this failure, both the Courts below held that he could not prove his lawful possession of the disputed strip of land having the trees. . On the contrary, the respondent went to the Court with the evidence of Surveyor, who not only produced a map which he prepared after taking measurements but deposed that the disputed 10R strip of land is part of the respondent's land survey No. 30. The Courts below, believed this defence, which according to them proved fatal to the case of the (3) SA 910.2008 appellant. The appellant thus, lost in the Courts below. 3] The learned Advocate appearing for the appellant showed me a copy of the appellant’s application which he made before the first appeal Court, seeking joint measurement of the lands in question. She also tried to show that this application went without adjudication. She suggested that in the absence of adjudication of this application which could be considered as an application under Order 41 Rule 27 of the Code of Civil Procedure, the learned Judge of the first appeal Court could not have decided the appeal. She also said that since there is no discussion on this application in the impugned judgment, the learned Judge of the first appeal Court committed grave error of law. She even suggested that the matter deserves to be remanded back. This argument is not convincing. The learned Judge of the first appeal Court rightly observed that first, the appellant should have proved his possession and he should have proved it to be lawful. In addition, he said that the appellant should have made at least an application during the pendency of the trial to get both the lands jointly measured. In the absence of such exercise he rightly held that the appellant had lost an opportunity to prove his case. (4) SA 910.2008 4] The learned Advocate appearing for the appellant placed reliance also on the judgment of our High Court in the case of Manohar Mahadeorao Pagrut Versus Sunanda Ramdas Tharkar reported in 2008(3) Bom.C.R. 4. The ratio would not apply to the facts of this case. In that case, the plaintiff had filed suits for recovery of possession of encroached area alleging that the defendant made that encroachment. In defence, the defendant made an application to the Court for getting both the lands measured jointly. The lower Court rejected that application. When the matter went before the High Court, the High Court held that the defendant’s application seeking joint measurement should have been allowed. The fact situation of this case is exactly opposite. So, the ratio of this judgment is not applicable to the facts of the case. 5] In the background of such discussion, it is obvious that the learned Judge of the first appeal Court, had ignored the application seeking permission to adduce additional evidence purposely. Obviously the application was made rather belatedly. In my view, the appellant did not have locus to make such application. As said above, in a case like this, when the appellant came to Court as plaintiff, he should have come with adequate preparation. He should have collected necessary evidence to prove that the 10R strip beyond the stream, was part of his (5) SA 910.2008 land survey no.31. After making such preparation, and after collecting necessary evidence to support his case, he should have filed the suit. After filing of the suit of this nature, it is not permissible for him to make an application seeking joint measurement, as such act would have amounted to collecting evidence with the help of the Court. Such activity is generally not favoured by the Courts. In view of the concurrent findings, the appeal does not give rise to any substantial question of law. The appeal should fail. The Second Appeal stands dismissed. 6] In view of the dismissal of the Second Appeal no. 910 of 2008, Civil Application no. 13151 of 2008 seeking stay, does not survive, the same stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp