Writ Petition No. 4947 of 2011

8th July, 2011

Petitioner Counsel: Mr. S.J. SALUNKE

Cases Cited:
Sanjay S/o Namdeo Khandare Vs. Sahebrao S/o Kachru Khandare and Ors, 2001(1) ALL MR 653=2001 (1) Bom.C.R. 800 [Para 3]
Haryana Wakf Board Vs. Shanti Sarup and others, 2008 (8) SCC 671 [Para 5]
Kolhapuri Bandu Lakade Vs. Yellapa Chinappa Lakade [since deceased] through L.Rs. Puja about Pujari Y.Lakade and others, 2011(3) ALL MR 599 =2011 (3) Mh.L.J. 348 [Para 5]

JUDGMENT

JUDGMENT :- The present respondent/original plaintiff has filed Suit for removal of encroachment. During the pendency of Suit, has filed an application for appointment of Commissioner i.e. T.I.L.R. to measure the land of the plaintiff as well as the defendant. The trial Court allowed the said application. Aggrieved thereby, the present Writ Petition is filed.

2. Mr. S.J.Salunke, the learned counsel for the petitioner vehemently contended that the Commissioner can not be appointed to collect the evidence. Perusal of the application shows that the Commissioner is appointed only for the purpose of collecting evidence. The plaintiff has to stand or fall on his own feet and can not take the aid of the Court in collecting the evidence. The learned counsel further states that earlier the present petitioners had filed Suit for injunction which came to be decreed, in which the present respondents stated that there is no bandh between the land of the plaintiff and the defendant and now in the present case are coming forth with the story that the bandh is demolished by the defendant.

3. To substantiate the contention that the Commissioner can not be appointed to collect the evidence, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Sanjay S/o Namdeo Khandare V/s Sahebrao S/o Kachru Khandare and others reported in 2001 (1) Bom.C.R. - 800 : [2001(1) ALL MR 653].

4. The proposition that the Commissioner can not be appointed to collect the evidence, need not be dilated. But, in each and every case, it can not be said that the Commissioner appointed by the Court invoking its power U/s 75 read with Order XXVI Rule 9 of the Code of Civil Procedure is for collecting evidence. In many cases, they are meant for the assistance of the Court in arriving at the just conclusion.

5. 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 V/s Shanti Sarup and others reported in 2008 ( 8 ) SCC 671 and the learned Single Judge of this Court in a case of Kolhapuri Bandu Lakade V/s Yellapa Chinappa Lakade [ since deceased ] through L.Rs. Puja about Pujari Y.Lakade and others reported in 2011 ( 3 ) Mh.L.J. 348 : [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 of the plaintiff as well as the defendant, which has been allowed.

6. The Judgment relied by the learned counsel for the petitioner is of no avail in view of the fact that in the said case, the Commissioner was appointed to inspect the spot and submit the report about the actual possession. In light of those facts, it was observed by this Court that the Commissioner could not be appointed to gather evidence as to the possession.

7. In view of the above conspectus of the matter, no error is committed by the Court below while passing the impugned order. The Writ Petition as such is dismissed, however with no order as to costs.

Petition dismissed