JUDGMENT : Anubha Rawat Choudhary, J. Heard the learned counsel appearing on behalf of the appellant. 2. This appeal has been filed against the judgement dated 23.07.2018 (decree singed on 27.07.2018) passed by learned District Judge – I, Dhanbad in Civil Appeal No.32 of 2018, whereby the learned 1 st appellate court partly allowed the appeal and directed the defendant to handover the vacant possession of the encroached portion measuring an area of 615 sq. ft. of the land towards eastern side of the house of the plaintiff, failing which the plaintiff would be entitled to recover khas possession through the process of law. 3. The trial court judgement dated 02.02.2018 (decree signed on 12.02.2018) was passed by learned Civil Judge (Junior Division) I Dhanbad, in Title Suit No.99 of 2008, whereby the suit was decreed. 4. The defendant is the appellant before this Court. 5. The learned counsel for the appellant, while assailing the impugned judgements, submitted that neither the deed nor the Amin’s report had the proper boundary, which is the basis to calculate the area of encroachment and further no specific boundary has been mentioned in the judgement passed by the learned 1 st appellate court with respect to which there is an order of recovery 615 sq. ft. The learned counsel submitted that in view of such discrepancy, the decree is not executable. She further submitted that a substantial question of law be framed and decided. She has referred to the judgment passed by Hon’ble Orissa High Court reported in 1981 SCC OnLine Ori 62 ( Rama Subudhi and Others Vs. Bhagirathi and others ). However, the said judgement arose out of an execution proceeding. Referring to paragraph 9 of the said judgment, she contended that when the description of the property is vague, a suit cannot be decreed. The learned counsel has also submitted that there is no specific date of encroachment by the defendant in the records. 6. After hearing the learned counsel for the appellant, this Court finds that the suit was filed seeking a decree of declaration of title with respect of the land of Schedule A as purchased vide registered sale deed no.4841 dated 19.04.1982 and also seeking confirmation of possession with a further relief that if the plaintiff is dispossessed during the suit, then for a decree of recovery of khas possession of the suit property. 7. 7. The case of the plaintiff is that the plaintiff had purchased four kathas of land pertaining to plot nos.103 and 106 under khata no.105 vide sale deed no.4841 dated 19.04.1982 from the rightful owner namely Joytishwar Ghosh and came in possession but the defendant has been creating disturbance and interfering with the possession of the Schedule A land by tying his cows and buffaloes. A proceeding under Section 144 Cr.P.C. was initiated vide M.P. Case No.372/03 and as per the plaintiff, the decision in the said proceedings was incorrect. 8. It was further case of the plaintiff that after purchasing the suit land, he had constructed a boundary wall in the year 1982 and as a northern wall of the plaintiff’s land got damaged, the plaintiff wanted to repair the damaged wall for the purposes of safety and privacy but the defendant without any justification started creating trouble. In order to cause demarcation, the plaintiff filed an application before the Circle Officer, Dhanbad for measurement of the land which was measured by the Circle Officer in Measurement Case No.23/2000-01 vide report dated 07.01.2002 showing demarcation of the purchased land of the plaintiff. The plaintiff had the required documents with respect to the suit property including rent receipts issued by the State government and the defendant did not have any supporting document. The cause of action arose on 14.09.2008 when the defendant trespassed into Schedule A property of the plaint by tying cows and buffaloes. It was asserted that the defendant had no right, title, interest and possession with respect to the suit land. Since the defendant was bent upon to dispossessing the plaintiff from the suit land, the suit was filed. The schedule of the suit property as contained in Schedule A is mentioned as follows: “Schedule A Raiyati land situated in Mouza – DuhatandPergana, Jharia P.S. and Municipality Dhanbad, Mouza No.47, Khata No.105, Plot No.103 and 106, out of which area 4 kathas butted and bounded as follows: - North Jogeshwar South Muneshwar Yadav East Jagdish Yadav West Rasta 9. The defendant filed written statement and they asserted that the plot was recorded under abad malik under khata no.105 under khewat no.15 and there were several khewatdars. The defendant filed written statement and they asserted that the plot was recorded under abad malik under khata no.105 under khewat no.15 and there were several khewatdars. One of the khewatdars was Amulya Ratan Ghosh and his grandson was Jotishwar Ghosh and another was Rajnikant Choubey, his son was Shiv Kanti Choubey; Jyotishwar Ghosh while in possession sold ½ katha or say 8 chattak to the wife of the defendant in plot no.103 with specific boundary in the month of February, 1982 and another khewatdar Shiv Kant Choubey in possession had sold the portion of plot in question to Rameshwar Yadav and put Rameshwar Yadav in possession and Rameshwar Yadav was a close relative of the defendant and was in possession since March 1982. Since then, the wife of the defendant and Rameshwar Yadav were in peaceful possession and got their name mutated and also constructed boundary over the purchased land. 10. It was asserted that the deed of the plaintiff was fraudulent and collusive and there has been two MP Cases before the Sub-Divisional Judicial Magistrate, one was MP case No.372 of 2003 and other was MP Case No.1234 of 2007 which were decided in favour of the defendant. It was asserted that it was false for the plaintiff to say that plaintiff had constructed a boundary wall and thus the question of repairing by the plaintiff does not arise. It was asserted that the defendant had no knowledge of the report of the amin and the reported of amin was a table report and the land was never measured in the presence of the defendant. The defendant stated that the plaintiff has not acquired any title by virtue of the deed and the legal heirs of recorded khewatdar, who were in peaceful possession, have transferred 2 ½ katha to the wife of defendant and Rameshwar Yadav, later on sold to Chandia Devi (wife of the defendant) vide registered sale deed no.8049 on 06.10.2004. Admittedly Chandia Devi is not a party to the proceeding. 11. The learned court framed as many as 12 issues for consideration, which are quoted as under: i) Is the present suit is maintainable in its present form? ii) Is there any cause of action for the present suit? iii) Is the suit is barred under the principles of waiver, acquiescence and estoppel? 11. The learned court framed as many as 12 issues for consideration, which are quoted as under: i) Is the present suit is maintainable in its present form? ii) Is there any cause of action for the present suit? iii) Is the suit is barred under the principles of waiver, acquiescence and estoppel? iv) Is the suit barred under the provisions of the Specific Relief Act? v) Is the suit had for mis-joinder/non-joinder of necessary party/parties? vi) Has the plaint been under valued? vii) Is the plaintiff title holder of the suit plot on the strength of sale deed no. 4841 dated: 19.04.1982? viii) Whether the plaintiff has been exercising possession over his purchased land? ix) Has the defendant purchased by the deed of sale portion/portions of the suit land? x) Whether the deed of sale of theplaintiff is a legal one? xi) Whether the area of the suit land has been purchased benami by defendant in the name of his wife? xii) To what relief orreliefs the plaintiff is entitled to? 12. Both the parties adduced documentary and oral evidence in support of their case. The learned court took issue nos.(vii) and (x) as the main issue and after considering the materials on record came to a finding that the plaintiff has been able to establish his title over the suit land on the strength of the sale deed no.4841 dated 19.04.1982 and both the issues were decided in favour of the plaintiff. “8. Issues No. (vii)&(x):- These are the main issues and are co- related, so are taken together for consideration. In this regard, from combined reading of all the four deeds of the parties and the maps attached with exhibits 2, D & A, it is quite apparent that the defendant has purchased the area half katha (i.e. about 0.83 decimal = 359.36 or 360 sq. Ft.) North-East portion land of plot No. 103 and area 2 decimals (i.e. about 871 square feet) land towards North-East portion of the plot no. 103 & the North-West portion of plot No. 106) i.e. the total area about 2.83 decimals = about 1 3/4 katha which comes to be about 1225 square feet Northern portion land of plots No. 103 & 106. Whereas, the plaintiff has purchased 4 kathas land (i.e. about 2874.96 or 2875 square feet of land (as there is about 718.74 sq. Ft. Whereas, the plaintiff has purchased 4 kathas land (i.e. about 2874.96 or 2875 square feet of land (as there is about 718.74 sq. Ft. in one katha in this locality) in South to the lands purchased by the defendant. And, from the mutation orders and Malguzari receipts it is evident that the purchased lands of both the parties have been mutated in their respective names and they are paying rent in relation to their purchased lands which are clear and specifically identifiable with their boundaries and position and thus the purchase portion of both the parties are quite separate. So, title of both the parties in relation to their purchased lands on the strength of their respective sale deeds gets established. It is also quite clear that the defendant has purchased ½ Katha land in the name of his wife and the plaintiff has purchased 4 Katha land in his name from the same vendor and so the defendant cannot and shall not allege validity of the purchase of the suit-land by the plaintiff. Also, as discussed above, the purchase of the plaintiff has also been well accepted by the Government, who admitting his purchase and considering him to be a raiyat, has mutated his name in relation to the suit-land and has received malguzari from him. So, in the facts and circumstances and the discussions made above, I come to the conclusion that the plaintiff has been able to establish him the title holder of the suit land on the strength of sale deed no. 4841 dated 19.04.1982 in his favour and the deed of sale of the plaintiff is a legal and enforceable. Accordingly, issues No. (vii) & (x) go and are decided in favour of the plaintiff.” 13. So far as issue no.(ix) and (xi) are concerned, the same were also decided in favour of the plaintiff vide paragraph 9. 14. Issue no.(viii) was decided vide paragraph 10 of the trial court’s judgement. The Amin’s report was also considered along with other materials on record. With respect to Exhibit 4, which was the Amin’s report, it has been recorded that it was evident that Circle Officer had ordered Anchan Amin to measure the land of plaintiff and to submit a report. Exhibit 4/a reveals that Anchan Amin had shown the site map which was counter signed by the Circle Officer, Dhanbad. With respect to Exhibit 4, which was the Amin’s report, it has been recorded that it was evident that Circle Officer had ordered Anchan Amin to measure the land of plaintiff and to submit a report. Exhibit 4/a reveals that Anchan Amin had shown the site map which was counter signed by the Circle Officer, Dhanbad. It was further found that out of the purchased land of the plaintiff measuring an area of 80 ¾ x 32 1/3 ft., one Sahdeo Yadav had occupied an area of 34x5 ft. on the eastern portion, while towards the west, the defendant had occupied an area of 17 ¾ x 34 ¾. Consequently, only an area of 58 ft. x 32 1/3 ft. remained with the plaintiff. In the map, a total area of 174 sq. ft. was shown as encroached by Sahdeo Yadav, as his house over the same and area 615 sq. ft. has been shown as encroached by Jageshwar Yadav (defendant) as vacant land. The defendant claimed to have constructed cow shed over the same but the site map shows that it was barren land. In cross-examination, the plaintiff stated that the defendant forcibly occupied his land eight years ago and he was not allowed to construct a boundary over the land. The learned trial court, after considering the materials has also recorded that the defendant did not make any claim of title by prescription and was of the view that encroached land of the plaintiff was recoverable and decided the issue no.(viii) accordingly. The other issues were also decided in favour of the plaintiff and suit was ultimately decreed. 15. While deciding issue nos.(i) and (ii), the learned trial court held that the plaintiff is the rightful owner of the suit land on the strength of Sale Deed No.4841 dated 19.04.1982 and has been in possession thereof. The court further held that the claim of the defendant on the basis of sale deed in favour of his wife, is with respect to separate and distinct land which is north of the plaintiff’s purchased land having no concern with the suit land. However, the defendant had occupied 17 ¾ feet X 34 ¾ feet of the land of the plaintiff by saying that it was the purchased land of the defendant and held that the plaintiff had a valid cause of action. 16. However, the defendant had occupied 17 ¾ feet X 34 ¾ feet of the land of the plaintiff by saying that it was the purchased land of the defendant and held that the plaintiff had a valid cause of action. 16. While deciding issue no.(xii) and passing the final judgement, the learned trial court held that the plaintiff would be entitled to recover 58 ft. x 32 1/3 ft. of land from the defendant, which falls within the area covered by Sale Deed No.4841 dated 19.04.1982 and lies towards the east of the house of the plaintiff. 17. So far as the learned 1 st appellate court is concerned, the points for determination before the appeal have been recorded in paragraph 11 of the appellate court’s judgement. i) Whether, the suit of the plaintiff/respondent is maintainable or not? ii) Whether, there is valid cause of action of the plaintiff/respondent or not? iii) Whether there is right, title, and interest of the plaintiff/respondent on the suit property mentioned in Schedule – A of the plaint or not? iv) Whether any portion of suit land have been encroached by the defendant or not? v) Defendant is liable to be vacate the encroached land of the suit property or not? 18. The learned 1 st appellate court also considered the materials on record and held that the suit property was identifiable and gave concurrent findings with respect to right and title of the parties on the strength of their respective deeds and also held that the defendant had encroached only 615 square feet of the land of the plaintiff which was identifiable and the learned trial court had wrongly calculated the area of encroachment by the defendant and accordingly modified the area of encroachment. In paragraphs 28 to 32 of the judgment, it has been ultimately recorded as follows: 28) Learned trial court in his impugned judgment has relied upon the Ext.4 and moreover, Ext. 4/a, which is measurement report of the Amin. Ext. 4/a is the map annexed with the order of the measurement order of C.O. and Ext.4/a has shown the land which was purchased by the plaintiff is about 2880 sq. feet = 4 kathas and out of which green rectangular shows that 186 sq. 4/a, which is measurement report of the Amin. Ext. 4/a is the map annexed with the order of the measurement order of C.O. and Ext.4/a has shown the land which was purchased by the plaintiff is about 2880 sq. feet = 4 kathas and out of which green rectangular shows that 186 sq. feet has been used in road and red rectangular shows the plaintiff is in possession of 1905 sq feet and blue rectangular shows that defendant has encroached only 615 sq. feet of land and yellow rectangular shows that Sahdeo Yadav has encroached 174 sq. feet of land. 29) So, Ext.4/a on which learned trial court is relied meanly shows that the defendant/appellant is encroached only 615 sq. feet of land of the suit property of the plaintiff and 1 katha = 720 sq. feet. So, here the plaintiff and defendant has rightly stated that dispute is about 1 katha of land which has been encroached by the defendant. So, Ext.4/a shows that plaintiff has been in the possession of suit land of 1905 sq. feet and the encroachment by defendant/appellant is only 615 Sq.feet but the learned trial court in the operative portion of the impugned judgment has passed order and directed the defendant to hand over the vacant possession of encroached land of 58 x 32 1/3 feet of the suit land towards east of the house of the plaintiff. Where 58 x 32 1/3 feet = 1875.14 sq. feet and the land of possession of the plaintiff 1905 sq. feet has mentioned in Ext.4/a and 186 sq. feet went in the road to be added as per Ext. 4/a than it will be 2091 sq. feet and total of 1875.14 + 186+ 1905, then it will be 3966.14 where the plaintiff has only purchased 4 kathas of land i.e. 2880 sq. feet which is much beyond the purchase of land of the suit property. Hence, I find that learned trial court has erred in calculation of encroached land by the defendant in the operative portion of the impugned order and as per Ext. 4/a only 615 sq. feet has been encroached by the defendant in this case. 30) Hence, plaintiff is only entitled to get recovery of 615 Sq. Hence, I find that learned trial court has erred in calculation of encroached land by the defendant in the operative portion of the impugned order and as per Ext. 4/a only 615 sq. feet has been encroached by the defendant in this case. 30) Hence, plaintiff is only entitled to get recovery of 615 Sq. feet of land from the defendant which he encroached as per Ext.4/a. 31) Hence, these points have also been decided in favour of respondent/plaintiff only to the extent that the defendant has encroached only 615 sq. feet of land from the suit property and plaintiff is entitled only to recovery 615 sq. feet of land which is encroached by the defendant. Hence, there is mis-calculation and illegality in the operative part of the impugned judgment and in place of order of handed over of possession of 58 x 32, 1/3 feet, it would be that defendant is directed to hand over the vacant possession of the encroached portion of area 615 sq. feet as per Ext. 4/a. 32) Accordingly, there is illegality in the operative portion of impugned judgment only to the extent that direction to defendant/appellant to hand over the vacant possession 615 sq. feet instead of 58 x 32 1/3 feet to the plaintiff.” 19. Thus, this Court finds that both the learned courts have given concurrent findings after appreciating the materials on record except that the learned 1 st appellate court found that the learned trial court had wrongly calculated the area of encroachment by the defendant. Such a finding has been recorded in paragraph 29 of the 1 st appellate court’s judgement and it has been ultimately held that the plaintiff is entitled for recovery of only 615 sq. ft. of land from the defendant. The courts have recorded that the suit property was identifiable. However, the 1 st appeal was partly allowed by holding that the plaintiff would be entitled for recovery of possession of only 615 sq. ft. of land from the defendant, which the defendant had encroached as per Exhibit 4/a, which in turn provides a well-defined description of the area under encroachment. 20. However, the 1 st appeal was partly allowed by holding that the plaintiff would be entitled for recovery of possession of only 615 sq. ft. of land from the defendant, which the defendant had encroached as per Exhibit 4/a, which in turn provides a well-defined description of the area under encroachment. 20. The argument of the learned counsel for the appellant that the area of encroachment was not identifiable is not correct in view of the findings recorded by the learned courts and accordingly the judgement cited by the appellant does apply to the facts and circumstances of this case. The finding by the learned 1 st appellate court and the modification made by the learned 1 st appellate court with respect to area of encroachment by the defendant (615 square feet) are well- reasoned. There is no scope for reappreciation of materials on record at the stage of second appeal, and as such no perversity in the matter of appreciation of evidence has been pointed out by the learned counsel for the appellant. 21. This Court is of the view that no substantial question of law arises for consideration in this appeal. Accordingly, the second appeal is dismissed. 22. Pending interlocutory application, if any, is dismissed as not pressed. 23. 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