(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 7672 OF 2009 Digambar s/o. Devidas Daud, Age : 35 years, .. Petitioner Occupation : Agriculture, (Original R/o. Jalgaon Sapkal, plaintiff) Taluka : Bhokardan, Dist. Jalna. versus 1. Paraji s/o. Mahadu Gaikwad, Age : 23 years, Occupation : Agriculture. 2. Suryabhan s/o. Mahadu Gaikwad, Age : 25 years, Occupation : Agriculture. 3. Samadhan s/o. Mahadu Gaikwad, Age : 35 years, Occupation : Agriculture. 4. Mahadu s/o. Shivaji Gaikwad, Age : 68 years, Occupation : Agriculture. .. Respondents (Original All R/o. Phattepur Jalgaon defendant Sapkal, Taluka : Bhokardan, nos.1 to 4) District : Jalna. .......................... (2) Mr. S.B. Kakde, Advocate, for the petitioner. Mr. M.M. Patil (Beedkar), Advocate, for respondent nos.3 and 4, caveators. .......................... CORAM : B.R. GAVAI, J. DATE : 26TH NOVEMBER 2009. COURT'S ORDER : 1. By way of present petition, the petitioner challenges the order dated 2nd November 2009, passed by the learned Civil Judge (Junior Division), Bhokardan, below Exhibit 51 in Regular Civil Suit No. 31/2008, thereby rejecting the application filed by the present petitioner for appointment of court commissioner. 2. The petitioner plaintiff has filed a suit for declaration of ownership and for an order of perpetual injunction restraining the respondents from interfering with his peaceful possession. In an earlier round, the proceedings arising out of an application for temporary injunction came up to this court. This court had directed that the suit be decided expeditiously. The present petitioner has filed an application for appointment of court commissioner so as to verify as to who is in possession of the suit land. The said application is rejected. Hence, the present petition. (3) 3. Mr. S.B. Kakde, learned Counsel appearing for the petitioner, submits that for finding out factual position, the appointment of court commissioner was necessary. He, therefore, submits that the learned Judge of the trial court has erroneously rejected the application. 4. Mr. M.M. Patil (Beedkar), learned Counsel appearing for respondent nos.3 and 4, on the contrary, submits that the learned Judge of the trial court has rightly rejected the application and no interference is warranted. 5. The learned Judge of the trial court, while rejecting the application, has found that it is duty of the court to find out and decide as to who is in possession of the suit land on the basis of the evidence that would be led on behalf of the parties. It has further been found that this judicial function cannot be delegated to a court commissioner. 6. The provisions of Order XXVI Rule 9 of the Code of Civil Procedure, 1908, bestow discretion upon the court to appoint or not to appoint court commissioner. Unless the said discretion is found to be exercised with perversity, no interference is warranted. 7. No perversity is noticed in the discretion exercised by the learned Judge of the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. (4) 8. The petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp7672