2014(3) ALL MR 698
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

K.K. TATED, J.

Malhar s/o. Ganpat Bokephod & Ors. Vs. Shivaji s/o. Vishwanath Pawal

Writ Petition No.7094 of 2013

17th October, 2013

Petitioner Counsel: Mr. ANAND P. BHANDARI
Respondent Counsel: Mr. C.R. DESHPANDE

Civil P.C. (1908), O.26 R.9 - Appointment of Court Commissioner - Application for, to measure property - Plaintiff filed suit for injunction restraining defendants from disturbing his possession in respect of suit property - In plaint plaintiff admitted that, his predecessor has sold 7 acres of land to defendant's father - Plaintiff has no objection if measurement to be carried out by Court Commissioner taking into consideration area of defendant - Court has discretion to order local investigation under O.26 R.9 - Object of local investigation is not so much to collect evidence which can be taken in court, but to obtain evidence which from its peculiar nature can only be had on spot - Cases of boundary disputes and disputes about identity of lands are instances when court should order local investigation - Disputes regarding boundaries can be best adjudicated by taking assistance of experts - Application deserved to be allowed.

It is settled position of law that under Order 26, Rule 9 of the Code of Civil Procedure, the Court has discretion to order local investigation. The object of local investigation is not so much to collect evidence which can be taken in Court, but to obtain evidence which from its peculiar nature can only be had on the spot. Cases of boundary disputes and disputes about identity of lands are instances when a Court should order local investigation under Order 26, Rule 9 of the Code. The disputes regarding the boundaries can be best adjudicated by taking the assistance of the experts such as the T.I.L.R., who on measurement can express his opinion. In the present case, the plaintiff has prayed for appointment of Commissioner to measure the property which has been allowed. 2012(1) ALL MR 80 Disting. [Para 9,10,11,12]

Cases Cited:
Syed Mushtaque Ahmad Syed Ismail & Ors. Vs. Syed Ashique Ali Khan Haidar Ali, 2012(1) ALL MR 80=2012(2) Bom.C.R. 790 [Para 7,12]
Haryana Wakf Board Vs. Shanti Sarup & Ors., (2008) 8 SCC 671 [Para 11]
Kolhapuri Bandu Lakade Vs. Yellappa Chinappa Lakade (since deceased) through L.Rs. Pooja @ Poojari Y. Lakade & Ors., 2011(3) ALL MR 599=2011(3) Bom.C.R. 807 [Para 11]


JUDGMENT

JUDGMENT :- Heard learned Counsel for the parties.

2. Rule.

3. Rule made returnable forthwith.

4. By consent of both the parties, matter is taken on board for final disposal at the stage of admission.

5. By this writ petition under Article 227 of the Constitution of India, the petitioners - original defendants challenge the order dated 26th August, 2013 passed by the Civil Judge, Junior Division, Ashti below Exhibit-42 appointing a Court Commissioner to measure land bearing Survey No. 220 from western side 7 acres of land.

6. Few facts are as under :-

Respondent - original plaintiff filed Regular Civil Suit No. 387 of 2012 in the Court of the Civil Judge, Junior Division, Ashti for injunction restraining the respondent from disturbing his possession in respect of the suit property i.e. 1 Hector 18 Are from Survey No. 220 as described in paragraph-1 of the plaint. In that suit, respondent preferred application below Exhibit-42 dated 25th April, 2013 for appointment of Court Commissioner to measure the suit land. In that application, respondent admitted that his predecessor sold 7 acres of land to the petitioners' father by sale deed dated 19th January, 1968 (Exhibit-C Page-22 in the present petition). In that application, the petitioners filed their say dated 4th July, 2013 and opposed the said application on the ground that the respondent has not filed suit for removal of encroachment, application is not tenable in law and on other grounds. Considering the application filed by the respondent and reply filed by the petitioners, the trial Court has passed impugned order dated 26th August, 2013.

7. Mr. A.P. Bhandari, learned Counsel appearing on behalf of the petitioners submits that impugned order dated 26th August, 2013 passed by the trial Court is against justice, equity and good conscience and same is liable to be set aside. He states that trial Court ought to have considered that suit filed by the respondent is for injunction. The respondent has to establish his alleged possession over the suit property. In such circumstances, there cannot be any question of encroachment of land. He further states that at the time of passing impugned order dated 26th August, 2013 trial Court has not given any reason for appointment of Court Commissioner to measure the suit property and that also from western side. In support of his contention, he relies on judgment of this Court in the case of Syed Mushtaque Ahmad Syed Ismail and others vs. Syed Ashique Ali Khan Haidar Ali reported in 2012(2) Bom.C.R. 790 : [2012(1) ALL MR 80]. On the basis of these submission, learned Counsel for the petitioners state that the impugned order passed by the trial Court dated 26th August, 2013 is required to be set aside.

8. On the other hand, Mr. C.R. Deshpande, learned Counsel appearing on behalf of respondent sole - original plaintiff vehemently opposed the present writ petition. He states that the petitioners have not shown any ground to set aside impugned order passed by the trial Court. He states that to dissolve the dispute about area, the trial Court has rightly passed impugned order appointing Court Commissioner to measure land Survey No. 220. He further makes a statement that, the respondent - original plaintiff has no objection if measurement is carried out taking into consideration sale deed dated 19th January, 1968 executed by respondent's predecessor in favour of the petitioners' father. On the basis of this submission, learned Counsel for the respondent state that, writ petition is required to be dismissed with costs.

9. I have heard both the sides at length. I have perused copy of plaint in R.C.S. No. 387 of 2012, application below Exhibit-42 dated 25th April, 2013 filed by the respondent for appointment of Court Commissioner, reply filed by the petitioners dated 4th July, 2013 and impugned order dated 26th August, 2013. It is to be noted that, in the present proceedings under Article 227 of the Constitution of India, the petitioners have challenged the order passed by the trial Court for appointment of Court Commissioner. Respondent - original plaintiff filed suit for injunction restraining the petitioners from disturbing his possession in respect of the suit property as described in paragraph-1 of the plaint. The respondent - original plaintiff in the plaint as well as in application below Exhibit-42 admitted that, his predecessor has sold 7 acres of land to the petitioners' father by sale deed dated 19th January,1968. That shows that, the respondent is not disputing area in possession of the petitioners as per sale deed dated 19th January, 1968.

10. Considering the above mentioned facts and statement made by learned Counsel for respondent, that the respondent has no objection if the order passed by the trial Court is modified to the extent that measurement to be carried out by the Court Commissioner taking into consideration sale deed dated 19th January, 1968.

11. I do not find any substance in the present writ petition. It is settled position of law that under Order 26, Rule 9 of the Code of Civil Procedure, the Court has discretion to order local investigation. The object of local investigation is not so much to collect evidence which can be taken in Court, but to obtain evidence which from its peculiar nature can only be had on the spot. Cases of boundary disputes and disputes about identity of lands are instances when a Court should order local investigation under Order 26, Rule 9 of the Code. The disputes regarding the boundaries can be best adjudicated by taking the assistance of the experts such as the T.I.L.R., who on measurement can express his opinion. The Apex Court in a case of Haryana Wakf Board vs. Shanti Sarup and others reported in 2008(8) S.C.C. 671 and the learned Single Judge of this Court in a case of Kolhapuri Bandu Lakade vs. Yellappa Chinappa Lakade (since deceased) through L.Rs. Pooja @ Poojari Y. Lakade and others reported in 2011(3) Bom.C.R. 807 : [2011(3) ALL MR 599] have held that in case regarding boundaries and area, an expert person can be appointed as a Commissioner for measurement of the properties. In the present case, the plaintiff has prayed for appointment of Commissioner to measure the property which has been allowed.

12. Authority cited by the petitioners of this Court in the case of Syed Mushtaque Ahmad Syed Ismail and others [2012(1) ALL MR 80] (supra) is not applicable to the facts and circumstances of the present case because in that matter, appointment of Court Commissioner was made for measurement of area as well as construction carried out by the parties.

13. Hence, writ petition is dismissed with a clarification that, Court Commissioner to carry out measurement as per order dated 26th August, 2013 passed by the Civil Judge, Junior Division, Ashti below Exhibit-42 taking into consideration sale deed dated 19th January, 1968 in stead of doing only from western side.

14. Rule discharged.

Petition dismissed.