1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 517 OF 2010 Hotlappa S/o Iranna Bhanje .... APPELLANT VERSUS Govind S/o Nagappa Bhanje Died – per L.Rs. .... RESPONDENTS -------------------------------------------------------------------------------------------------------- Mr.A.G.Godhamgaonkar, Advocate for appellant. -------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE: 23/08/2010 ORAL ORDER : 1. The present appellant is the original defendant no. 2. Plaintiff no. 1 filed Suit for recovery of possession to the extent of 74 R. as against the present appellant / original defendant no. 2 and 54 R. as against the original defendant no. 1. 2. The Trial Court decreed the Suit of the plaintiff directing defendant no. 1 to deliver the possession of the suit land as per Map Exh. 85, which was made the part of the Decree. The original defendants preferred Appeal before the District Court. The District Judge – 1, Biloli confirmed the Judgment of the Trial Court and dismissed the Appeal. 2 3. Mr. Godhamgaonkar, the learned counsel for the appellant strenuously contended that the plaintiff is claiming title on the basis of the Compromise Decree in R.C.S. No. 20 of 1986. The present suit property i.e. G.No. 76 wsas not the subject matter of the compromise decree and as such the very basis of the plaintiff’s case fails. He has further contended that the measurement has not been properly done. The Cadestral Surveyor has not shown the area of the land in possession of the present appellants, if the said area of the alleged encroachment is deducted. 4. From the perusal of the said Compromise Decree, it is clear that the parties thereof have agreed and accepted the partition as is detailed in the Map in R.C.S. No. 20 of 1986 and the partition of G.No. 76 is also depicted therein. As such, the said argument of Mr. Godhamgaonkar that G.No. 76 was not the part of the said Compromise Decree, is not sustainable. 5. The other argument that the measurement is not properly carried out and the exact areas are not shown, also can not be entertained . Both the Courts, after discussing the evidence of the Cadestral Surveyor, concurrently have come to the conclusion that the encroachment by the defendants has been proved. Twice the Cadestral Surveyor was appointed and on both the occasions, the encroachment as shown, has been proved. The Cadestral Surveyor has also been examined and his evidence is also not 3 shattered in the cross examination. There are concurrent findings of fact. No substantial question of law arises. As such present Second Appeal is dismissed with no order as to costs. 6. In view of dismissal of Second Appeal, Civil Application does not survives and as such disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/ SA 517.2010