spb/- 1 wp234-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 234 OF 2011 Shankar Karbhari Mali & Anr. ... Petitioners. V/s. Vishnu K. Pund & Ors. ... Respondents. ----- Mr. R.N. Gite for the Petitioners. Mr. Anilkumar K. Patil for the Respondents 1 to 4. ----- CORAM : D. G. KARNIK, J. DATE : 25th JULY, 2011. P.C. : 1 This petition is directed against an interlocutory order and calls for no interference by this court in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India. 2 Relying upon the decision of this court in the case of Manohar Mahadeorao Pagrut vs. Sunanda Ramdas Tharkar, 2008 (3) Bom. C.R. 4, the counsel for the petitioner submitted that in a suit for removal of encroachment a cadastral surveyor should be appointed. He also relied upon another decision of this court in the case of Girish Vasantrao Bhoyar vs. Nimbaji Warluji Bambat, 2009 BC I 313, and submitted that in a suit for possession by clearance of an encroachment, a court spb/- 2 wp234-11.sxw commissioner should be appointed. Both these decisions were in respect of an encroachment alleged to have been made by one of the parties to the suit. The present suit is not for removal of an encroachment. The suit is for injunction simplicitor. For getting a relief of injunction, the petitioner is required to prove his possession over the suit property on the date of institution of the suit. The court commissioner cannot determine who was in possession of the suit property on the date of institution of the suit. 3 There is no merit in the petition which is hereby rejected. [D.G. KARNIK, J.]