1 wp 4920.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4920 OF 2011 Neminath Dnyanoba Dhabadkar and another .. Petitioners Versus Devidas Trimbak Bhosale and others .. Respondents Shri B. R. Kedar, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J. DATE : 11TH JULY, 2011. PER COURT : . The petitioners are the original plaintiffs who have filed a suit for injunction. During the pendency of the suit the petitioners filed an application purportedly U/O 26 Rule 9 of the Code of Civil Procedure for appointment of a Court Commissioner to visit the spot and to submit the report as to the existence of the way. The said application came to be rejected. Aggrieved thereby the plaintiffs have filed the present petition. 2. Shri Kedar, the learned counsel for the petitioner 2 wp 4920.11 strenuously submits that the Trial Court has committed an error in rejecting the application for the appointment of the Court Commissioner on the ground that the same is for collection of evidence. The learned counsel contended that the plaintiffs contend the existence of way in one direction, whereas the defendants contend the existence of way from the another direction, as such, the Court Commissioner would be a competent person to ascertain the said fact and report of the Commissioner would assist the Court in coming to a just conclusion. To substantiate his contention the learned counsel relies on the judgment of the learned Single of this Court in a case of Kolhapuri Bandu Lakade Vs. Yallappa Chinappa Lakade reported in 2011 (3) Mh. L. J. page 348. According to the learned counsel the existence of the way can be brought by report of an independent person. 3. The judgment relied by the learned counsel for the petitioner in a case of Kolhapuri Bandu Lakade referred supra is on total different premise. In the said case the dispute was whether the construction was in CTS No. 1894 or CTS No. 1895 and to ascertain the same appointment of T. I. L. R. was sought who would measure the property and submit his report. The 3 wp 4920.11 situation of the property could only be gathered after the expert i. e. the T. I. L. R. measures the property and in that light the learned Single Judge of this Court had held that appointment of Commissioner in such cases is necessary. It also laid down a rider that the report of the Commissioner is not directly admissible, but the same is required to be proved. 4. In the present case, the dispute between the parties is regarding the existence of way from one or the other direction. The evidence can be led in this regard by the parties. To appoint Commissioner for the said purpose would be amounting to collecting evidence. In such circumstances, I do not see any error in the order passed by the Trial Court. Further the appointment of Commissioner is always to facilitate and assist the Court. The Court has observed in its order that the documents are filed on record which are sufficient and so also revenue authorities have drawn the panchanama. In such circumstances, no case for interference is made out in the writ jurisdiction of this Court. As such, the writ petition is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/July 11