JUDGMENT:- Appellants in this second appeal are original defendants in Regular Civil Suit No.24 of 1997, filed by the Respondents/plaintiffs on 30th January, 1997. The suit was for possession of alleged encroached area to the extent of 00 Hectare 14 Ares. Parties hereinafter are referred to their status in Regular Civil Suit No.24 of 1997.

On receipt of the suit summons, defendants entered appearance and filed their written statement.

Trial Court framed as many as eight issues. Parties led their evidence, oral-documentary. Trial Court, considering the evidence on record, decreed the suit on 3rd February, 2001. It was challenged by the defendants by filing Regular Civil Appeal No.32 of 2001 in the Court of learned District Judge at Jalna. This appeal, filed by the defendants, after hearing the parties, came to be dismissed by the judgment and order passed on 23rd December, 2004. This judgment and decree, passed by the first Appellate Court, in Regular Civil Appeal No.32 of 2001, is challenged by the aggrieved defendants, by filing this second appeal.

2. Mr. V. D. Hon, learned counsel for the Appellants, has invited my attention to the grounds in this second appeal, according to him involving substantial questions oflaw, which are reproduced herein below:

"IV) Whether the lower court has committed an error in interpreting the document of the T.I.L.R. report and the sketch submitted by him to the court and thereby have resulted into injustice.

V) Whether the lower Court ought to have taken into consideration that from the T.I.L.R.'s report, the measurement shows that the suit land as shown by the plaintiff Gat No.15 - 1 H. 49 R. and the T.I.L.R. has shown the said property as nearly 1 H. 68 R. whereby 19 R. have been shown excess I and this fact itself goes to show that the report and the sketch of the T.I.L.R. is t contrary to the record.

VII-A) Whether both the lower courts erred in not considering the fact that as per the provisions of Order 7, Rule 3 read with the amendment dt. 1-10-1993 of Bombay ( High Court amendment in Code of Civil S Procedure there is no description of the f property and in the plaint and no specific boundaries in respect of the suit land is given, therefore, in absence of specific boundaries It the suit filed by the plaintiffs was liable to be dismissed.

VII-B) Whether both lower courts have committed error in not considering the provisions of Order 7, Rule 3 read with the Bombay High Court Amendment in the Code of Civil Procedure, and therefore, in absence of specific description of the encroached portion the suit was liable to be dismissed.

VII-C) Whether both the lower Courts failed to consider that as per the surveyor manual the surveyor must have to issue notices for measurement of the suit land to all concerned adjoining owner of such land, however, in the present case admittedly no notice has been issued to the appellant, therefore whether the measurements carried out by the T.I.L.R. in derogation of the survey manual is bad and void and therefore, not binding and therefore cannot be relied upon.

VII-D) Whether therefore, the map prepared (Exh.44) by the T.I.L.R. which is sought to be made a basis for filing suit is contrary to law and therefore, cannot be relied upon and therefore, both the lower Courts have erred in relying on the map."

3. Mr. Hon, learned counsel, has taken me through the judgment of the trial Court. Issue No.3 framed by the trial Court was regarding the alleged encroachment to the extent of 00 Hectare 14 Ares by the defendants. Finding recorded by the trial Court is in favour of the plaintiffs. He has also referred to point for determination framed by the first Appellate Court. There were two points for determination framed by the first Appellate Court and point No.1 was regarding the alleged encroachment by the defendants. The first Appellate Court, while considering the appeal under section 96 of the Civil Procedure Code (the Code, for short) recorded its answer to point No.1 in f

Click Here to Read the rest of this document