1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6579 OF 2008 Santwan s/o Pandu Shinde ...Petitioner Versus Sulochana w/o Machindra Markad and others ...Respondents ..... Mr. S.L. Bhapkar, advocate for the petitioner Mr. A.N. Kakde h/f Mr. N.K. Kakde, advocate for respondents 1 & 3. ..... CORAM: S. S. SHINDE, J. DATED: 7TH OCTOBER, 2009 PER COURT:- 1 This petition is directed against the order dated 8.7.2008 passed by learned C.J.J.D. Pathardi on an application below Exh.20 in R.C.S. No. 145 of 2007, thereby rejecting the prayer of the petitioner for appointment of cadestral surveyor to measure the land of the petitioner. 2 Learned counsel appearing for the petitioner submitted that there is encroachment from three sides of the land in question by the respondents and therefore, in the interest of justice, the application which was filed by the petitioner for measurement of the land should have been allowed by the trial court. Learned counsel of the petitioner has invited my attention to the provisions of Order XXVI Rule 9 of C.P.C. and has placed reliance on the reported judgment of this Court in the case of Kisanlal Maniklal Rathi Vs. Dinkar Yashwant Patil, reported in 2004 (1) 2 Mh.L.J. 138 and submitted that where the case is of encroachment, in such case, for the purpose of local investigation, proper course open to the court is to appoint the Court Commissioner or cadestral surveyor, as the case may be, to measure the land. Learned counsel further submitted that in the instant case the petitioner is ready to bear the expenses of measurement if the cadestral surveyor is appointed for measurement of the land. It is further submitted that the observations in para 5 of the impugned order that before filing of the suit the petitioner should have approached the T.I.L.R. for measurement of the land, the counsel for the petitioner submits that since other adjoining owners of the lands are not consenting for the said measurement and therefore, it was not possible for the petitioner to apply independently for the measurement of the land. Therefore, learned counsel would submit that in the interest of justice, this petition may be allowed by setting aside the impugned order and directing the cadestral surveyor to carry out the measurement of the land. 3 Learned counsel appearing for the respondents supported the impugned order and submitted that while rejecting the application by the trial court, in para 5 and 6 of the impugned order, cogent reasons are given and therefore, this writ petition is devoid of any merits. Hence, petition deserves to be dismissed. 4 Heard counsel for the respective parties. I have also perused the impugned order and more particularly para 5 and 6 of the impugned 3 order. In para 5, the trial court has recorded the submissions of the counsel for the defendants that before filing of the suit, the plaintiffs ought to have got measured the land from Taluka Inspector of Land Record but he directly approached the trial court without availing the said remedy. The plaintiffs want to collect the evidence through court and this application is not tenable. In para 6, the court has observed that the plaintiff has not filed the map showing the encroachment alongwith the plaint. As per Order Rule VII Rule 3 of Bombay High Court amendment, in case of encroachment a sketch showing as approximately as possible the location and the extent of encroachment shall also be filed alongwith the plaint. However, the plaintiffs have not complied with this mandatory provision while filing the suit. The trial court has came to the conclusion that instead of following mandatory provisions and also in not applying to the T.I.L.R., it appears the plaintiff wants to collect the evidence through Court by filing application for the measurement of the lands. 5 On careful perusal of the impugned order, it appears to me that it was open for the petitioner to approach the T.I.L.R. independently before filing of suit. That apart, it was also incumbent upon the plaintiff to follow the mandatory provisions. From the observations of the trial court in para 6 of the impugned order, it appears that plaintiffs have not filed a sketch showing encroachment. There is no dispute about the ratio laid down in the judgment cited supra, however, application of the judgment would 4 depend on the facts of each case. In the instant case the map showing encroachment alongwith the plaint as per Order VII Rule 3 of the Bombay High court amendment has not been filed alongwith the plaint. That apart, it is open for the petitioner/plaintiff to approach the T.I.L.R. for measurement of the land. There is no attempt on the part of the petitioner to approach the T.I.L.R. and in absence of that the submission of the counsel for the petitioner that the adjoining landowners are not consenting for the said measurement, cannot be accepted. It will be open for the petitioner to apply independently to the T.I.L.R. for measurement of the land and in case the adjoining owners are not consenting for the said measurement, it will be open for the plaintiff/petitioner to apply afresh to the trial court for measurement of the land. 6 With these observations, the writ petition is dismissed. Interim relief, if any stands vacated. *****