(1) WP. 1031.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1031 OF 2010 Rajabhau S/o Namdev Khose Age : 43 years, Occu.: Agri., R/o. Matephal, Tq. and Dist. Latur .. Petitioner VERSUS 1. Varsha W/o. Rajebhau Khose, Age : 30 years, Occu.: Household, 2. Sow. Dipali W/o. Bandu Khose, Age : 25 years, Occu.: Household, 3. Sandipan S/o. Baliram Khose, Age : 50 years, Occu.: Agri., All R/o. Matephal, Tq. and Dist. Latur .. Respondents ... Mr. S.B. Rohile, Advocate for the Petitioner Mr. Dhananjay Deshpande, Advocate for the Respondents ... CORAM : V.R. KINGAONKAR, J. DATED : 3RD AUGUST, 2010 ORAL JUDGMENT:- 1. Rule. Rule made returnable forthwith and heard finally. 2. The short question involved in the Petition is as to whether learned Civil Judge (Junior Division) committed patent error while rejecting the (2) WP. 1031.2010 application (Exh. 70) filed by the petitioner for giving direction to the T.I.L.R. to fix the boundaries and also to fix the stones at the places of the boundaries of the land in question. 3. The petitioner filed Suit (R.C.S. 434 of 2007) for the purpose of declaration of ownership and perpetual injunction. On his application, T.I.L.R. was appointed as Court Commissioner. The T.I.L.R. visited the disputed land. He drew a panchanama dated 31.1.2009 after carrying out measurement. He reported to the Court that he had fixed marks with lime in respect of the share of the plaintiff and also earmarked the ditch as well as the well in question. The petitioner objected the Commissioner’s report so also the respondents raised objection about the report of the T.I.L.R. The petitioner thereafter filed an application for direction to the T.I.L.R. to fix boundary marks and stones. The said application came to be dismissed. Hence, the Petition. 4. Heard learned counsel for the parties. (3) WP. 1031.2010 5. Mr. Deshpande vehemently argued that the report of the Court Commissioner is sufficient because the measurement was carried out in the manner it was directed by the trial Court. He would submit that fixation of boundary marks in respect of the land which came to be acquired for percolation tank is not necessary for the purpose of the final adjudication of the suit. He contended that the impugned order is quite proper and legal. 6. Perusal of the panchanama drawn by the T.I.L.R. reveals that though he had fixed the boundary marks around the well and the ditch etc., yet he himself had informed the parties that he would tally the measurement map drawn at the time of the acquisition of the land, and, thereafter, will fix date for fixation of the boundaries. It is conspicuous from the panchanama dated 31.1.2009 that Eastern land out of gat no. 347 was acquired for the public purpose, namely, percolation tank. The observations of the T.I.L.R. would show that he had not collected the measurement map drawn at the time (4) WP. 1031.2010 of demarcation of the boundary line in respect of the acquired land. He wanted to get the boundary of the acquired land verified. In other words, the panchanama drawn by him is not complete in all respects. He himself had adjourned the work of fixing boundary marks and fixation of the stones after the verification of the map drawn at the time of acquisition of the Western portion of the land out of gat no. 347. This aspect is completely ignored by the trial Court. It is not necessary that the T.I.L.R.’s report is required to be accepted as it is or that the petitioner’s application could be dismissed only because he had not called the T.I.L.R. in the witness box. It is the ipse dixie apparent from the report of the T.I.L.R. and other documents that part of the work was not completed by him and as such, it was essential for the trial Court to direct the T.I.L.R. to fulfill the remaining part of the work. In this view of the matter, the impugned order is quite un- sustainable and as such is liable to be interferred with. (5) WP. 1031.2010 7. In the result, the Petition is allowed. The impugned order is set aside. The application filed by the petitioner be deemed as granted and the T.I.L.R. may be directed to carry out the complete work of measurement by fixing the boundary marks after verification of the measurement map drawn at the time of acquisition of the Western portion of the land in question. The T.I.L.R. would submit a fresh measurement report within a period of one month after service of relevant precept from the Civil Court. The Civil Court to issue necessary directions at the earliest and ensure due compliance of the directions from the T.I.L.R. Rule made absolute accordingly. No costs. Sd/- [V.R. KINGAONKAR, J.] arp