(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Writ Petition No. 1201 of 2009 Latabai w/o. Pandharinath Dhangare. .. Petitioner. versus 1. Suresh s/o. Trimbak Aher, 2. Pandharinath s/o. Namdeo Dhangare. .. Respondents. .................. Mrs. M.D. Thube (Mhase), Advocate, for the petitioner. Mrs. N.N. Gangwal (Jain), Advocate, for respondent no.1 caveator. .................. CORAM : B.R. GAVAI, J. DATE : 1ST JULY 2009. COURT’S ORDER : 1. By way of present petition, the petitioner challenges the order dated 21st January 2009, passed by the learned Joint Civil Judge (Junior Division), Vaijapur, below Exhibit 58 in Regular Civil Suit No. 93/2002, thereby rejecting the application filed by the present petitioner (original defendant no.2) for appointment of court commissioner. (2) 2. The respondent no.1 plaintiff has filed a suit for declaration of ownership and possession. The said suit is resisted by the present petitioner. 3. The present petitioner along with others had also filed one suit, being Regular Civil Suit No. 596/2001, praying for a declaration that the sale deed executed by the husband of the petitioner in favour of respondent no.1 was not binding on them. The said suit is decreed and the appeal filed by the respondent no.1, challenging the said decree, is dismissed. 4. In Regular Civil Suit No. 93/2002, an application came to be filed contending therein that on the suit site, there is no construction existing and that the hotel itself is not in existence and, as such, the claim of the plaintiff is devoid of substance. The said application is rejected. Hence, the present petition. 5. Mrs. M.D. Thube (Mhase), learned Counsel appearing for the petitioner, submits that to find out factual position that the so called hotel run by the respondent plaintiff was not in existence, it was necessary that the suit premises were inspected by the court commissioner. She submits that the appointment of court commissioner would facilitate the court in arriving at a just decision. 6. Mrs. N.N. Gangwal (Jain), learned Counsel appearing for respondent no.1, opposes the petition. She submits that the trial court has rightly rejected the application. (3) 7. The suit is filed by the plaintiff claiming that he is the owner of the suit premises and that he is in possession of the suit premises. In that view of the matter, it will be for the plaintiff to substantiate his claim by leading cogent evidence. As to what is the effect of the decree passed in Regular Civil Suit No. 596/2001 and the subsequent dismissal of Regular Civil Appeal No. 205/2005 would be very well considered by the trial court at the stage of hearing of the suit. 8. In that view of the matter, no perversity could be found with the approach adopted by the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 9. Petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ...................... bgp/wp1201