Kanhayalal Badashah and Balkrishna Badashah vs Budha Neware, Sudhakar Neware, Shrimati Watsala and Shrimati Durga

V.M. Kanade, J.

1.The appellants are the original plaintiffs and the respondents are the original defendants. (hereinafter the parties will be referred to as ""plaintiffs

and ""defendants"" for the sake of convenience).

FACTS

2.The plaintiffs have filed the suit for possession and damages. The case of the plaintiffs is that they are the owner of Gat No.16 and 17/2,

admeasuring 1.16 acres. The case of the plaintiffs was that the defendant no.1 Sitabai Neware was the mother of defendant no.2 Budha and

defendant no.3 Sudhakar and defendant no.4 Baburao was the brother defendant no.1. The case of the plaintiffs was that the defendants had

constructed a hut and prepared a compound to that hut on the said land and had encroached upon 0.03 acres of the plaintiffs land. They therefore

served a legal notice dated 14th June, 1982 on the defendants and, thereafter, filed the suit for possession and damages.

3.The trial court decreed the suit and directed that the defendants do deliver the vacant possession of 0.06 acres land after dismantling the hut and

compound and also held that the plaintiff was entitled to claim mesne profit.

4.The lower appellate court held that the plaintiffs had failed to prove the title to the suit property and that the co-owner Anusuyabai was not

joined to the present suit as the plaintiff. The lower appellate court, therefore, allowed the appeal of the defendants and decree passed by the trial

court was set aside. The appellants-original plaintiffs have preferred this second appeal challenging the order of the lower appellate court.

5.I have heard the learned counsel appearing on behalf of the appellants and learned counsel appearing on behalf of the respondents at length. He

has taken me through the judgment of the appellate court as well as the trial court. While going through the printed paper book prepared by the

office, I noticed that para 10 and 11 have not been properly reproduced from the judgment of the appellate court. I have, therefore, perused the

judgment of the appellate court from the private paper book which was prepared by the appellants. The appeal was admitted on 16.4.90 and at

the time of admission it is stated as follows : "" Admitted in view of the substantial question of law raised in the grounds raised on 16.4.90.

6.The learned counsel appearing on behalf of the appellants when he was questioned about the correctness of ground (vii) which states that the

appeal was decided in his absence, has submitted that said averment is incorrect because the appellate court had the given hearing to the

appellants. So far as the ground nos.(i) to (vi) are concerned, the said grounds do not contain any substantial question of law. The said grounds are

merely in respect of reappreciation of evidence, which is not permitted by Section 100 of the Code of Civil Procedure.

7.In the present case, the trial court had appointed a Commissioner, as there was a boundary dispute and the question was whether there was a

encroachment by the defendants to the tune of 0.03 acres, as shown in the plaint map. The Commissioner in his report has also given findings

against the plaintiff. The Commissioner was cross-examined, however, the evidence of the Commissioner could not be shaken, as it could not be

discarded in the cross examination.

8.In this view of the matter, no substantial question of law is raised in this second appeal. The second appeal is, therefore, dismissed. Under the

circumstances, there shall be no order as to costs.