1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 642 OF 2006 Smt.Godavaribai Lalsing Pardeshi, age: 69 years, Occ: Agriculture, R/o At Post Akhatwade, Tal.Pachora, District Jalgaon, through her power of attorney holder Mr.Lalsing Daga Pardesh. Appellant Versus Sankarsing Gotusing Pardeshi, age: 76 years, Occ: Agriculture, R/o At Post Akhatwade, Tal.Pachora, District Jalgaon. Respondent Mr.S.P.Shah, advocate holding for Mr.P.M.Shah, Senior Counsel for the appellant. Mr.V.C.Misal, advocate holding for Mr.R.S.Deshmukh, advocate for Respondent. CORAM: R.M.BORDE, J. DATE : 6th August, 2009. ORAL ORDER: 1 Heard Shri S.P.Shah, learned Counsel holding for Shri P.M.Shah, Senior Counsel for the appellant and Shri V.C.Misal, learned Counsel holding for Shri R.S.Deshmukh, advocate for Respondent. 2 Appellant-original plaintiff is raising exception to the judgment and decree dated 23.11.1999, passed by III Additional District Judge, Jalgaon in Regular Civil Appeal No.322/1992, whereby the first 2 appellate Court has allowed the appeal presented by original defendant and set aside the judgment and decree passed by the trial Court on 01.09.1992. 3 The suit was presented by plaintiff-appellant claiming recovery of possession of encroached portion to the extent of 21 ares from the defendant. It is stated that plaintiff and defendant are brother and sister inter se. There was a decree of partition in earlier suit and in execution of decree of partition, plaintiff was put in possession of the property. However, defendant committed encroachment to the extent of 21 ares on the portion which was allotted to the plaintiff in execution of darkhast. Plaintiff led evidence of surveyor who measured the disputed land to prove the factum of encroachment at the hands of defendant to the extent of 21 ares. The trial Court decreed the suit in favour of plaintiff on appreciation of evidence led by the parties. 4 An appeal was preferred by the defendant, being Regular Civil Appeal No.322 of 1992, which came to be heard and disposed of by III Additional District Judge, Jalgaon, who was pleased to dismiss same by judgment and order dated 27.11.1999. The first appellate Court has refused to rely upon the evidence of surveyor primarily on the ground that the original map, which was drawn after conducting measurement, has been destroyed and for the purpose of leading secondary evidence, the procedure, as laid down in section 65 of the Evidence Act, has not been followed. 5 It is an admitted position that original record in respect of 3 measurement has been destroyed and copy was produced on record by the plaintiff and same was sought to be proved by examining the surveyor. Plaintiff has not followed the procedure in respect of leading secondary evidence. 6 Another aspect, that is required to be taken note of, is that it is the contention of parties that they were put in possession in pursuant to execution of darkhast. Parties were put in possession after measuring the land and also maps were drawn. However, the maps prepared while putting the parties in possession in the year 1977 were not the basis for measuring the property by the surveyor. The method adopted by the surveyor for conducting the measurement was also found to be defective by the first appellate Court. 7 In these circumstances, I am of the opinion that the view adopted by the first appellate Court is correct, proper and no interference is called for. No substantial of law arises for consideration in the appeal. 8 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa64206