JUDGMENT :

Anil Satyavijay Kilor, J.

1. In the suit for declaration and mandatory injunction alleging encroachment on the land owned by the appellant/plaintiff, the 5th Joint Civil Judge, Junior Division, vide judgment and decree dated 28/02/2005, dismissed the suit, which has been upheld by the District Judge-12, Nagpur vide judgment and decree dated 27/01/2012 in Regular Civil Appeal No. 178/2005, the same is under challenge in the present appeal.

2. This Court on 09/10/2012, while admitting the appeal, framed the following substantial question of law.

"Whether the courts below have committed an error in holding that the plaintiffs have failed to establish the encroachment by the defendants over the area of 23 ½ sq. ft. from the southern side over the property of the plaintiff?"

3. The facts leading to the present appeal are that the plaintiff filed a suit for declaration, permanent and mandatory injunction.

It is the case of the plaintiff that he owns suit property namely Nazul Plot No. 267, Ward No. 69 Mouza Pandharabodi, Telangkhedi, Ramnagar, Nagpur admeasuring 198.50 sq. meters and he is residing there since 1940.

4. He further pleads that the defendant no. 1 and her sister Smt.