BABURAO SHANKAR TANGDE Vs. KUNDLIK YASHWANTA TANGADE

JUDGEMENT

(1.) Appeal has been admitted on 26.08.1991 on substantial question of law as to . Whether in a suit of removal of encroachment and possession, the extent of the encroachment could have been ascertained without the appointment of Commissioner

(2.) I have heard Shri S.V. Sirpurkar, Advocate for Appellant / original defendant and Shri V.G. Wankhede with Shri S.N. Gaikwad, Advocates for respondent / original plaintiff.

(3.) Advocate Sirpurkar, states that though the suit was accompanied by a map, map was drawn by a measurer behind the back of the present appellant. He further states that said measurement was not accepted by the trial court and the trial court dismissed the suit for removal of encroachment and for restoration of possession. However, the Appellate Court has reconsidered this evidence and found that the statement of cadastral surveyor, that notice to remain present on spot at the time of measurement was refused by the present appellant/ original defendant, ought to have been accepted by the trial court, and it therefore decreed the suit. He states that the approach is totally erroneous and if the cadastral surveyor found that notice was not being accepted by the present appellant he should have taken endorsement of at least two witnesses in support of the said fact. He further argues that notice could have been forwarded by R.P.A.D. to the respondent.