1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7611 OF 2010 Dattu s/o Wanaji Gawali age 33 years, occ. agriculture r/o Mogalai, Gawaliwada Dhule, Tq. & Dist. Dhule. .. PETITIONER VERSUS 1 Daji s/o Tirsing Pawar age 54 years, occ. business r/o Mahindale, Sakri Road, Dhule Tq. & Dist. Dhule. 2 Vijaysing s/o Popat Rajput age 50 years, occ. Rickshaw driver r/o Mahindale, Sakri Road, Dhule Tq. & Dist. Dhule. .. RESPONDENTS Mr. K.C. Sant for the petitioner. None appears for the respondents. ===== CORAM : R. M. BORDE, J. DATE : 30 th SEPTEMBER, 2010. ORAL JUDGMENT : 1 Heard. 2 Rule. None appears for the respondents though served. 2 3 Petitioner / original plaintiff presented Regular Civil Suit no. 229/2009 claiming removal of encroachment alleged to have been committed by the defendants on the residential plot belonging to the plaintiff to the extent of 12 ft X 6 ft and also for demolition of construction raised by the defendants / respondents on the encroached portion. 4 In the affidavit presented by the plaintiff a sketch showing encroached portion is presented to the court. Defendant has resisted the suit by filing written statement. On the basis of pleadings of the parties, trial court framed issues and the matter is posted for recording evidence. Plaintiffs have also presented application at exh. 18 requesting the court to appoint TILR as the Court Commissioner to measure the property. Application was opposed by the contesting respondent / original defendant contending that it is an attempt to collect evidence. Trial court has accepted the contentions raised by the defendant and rejected the application in view of order dt. 25-3-2010. Order passed by the trial court rejecting the application tendered by the plaintiff at exh. 18 is subject matter of challenge in this petition. 3 5 I have perused the application as well as the impugned order passed by the trial court. I have also heard arguments advanced by learned counsel for the petitioner. None appears for the respondents though served. Suit presented by the plaintiffs is in respect of removal of encroachment. Defendant does not admit description and measurement of the property stated by the plaintiff in the plaint. In order to resolve the controversy arising between the parties it is appropriate in the matter wherein the claim is in respect of removal of encroachment, to direct a joint measurement of the property. It cannot be said that if the Commissioner is directed to conduct the measurement of the property in the presence of both the parties, it in itself would be an attempt to collect evidence for the parties. Such a report of the Court Commissioner after conducting the measurement alongwith the map of the suit site enables the court to understand the controversy involved in the matter in proper perspective. Trial court ought to have exercised discretion in favour of the plaintiff and ought to have allowed the application in the facts and circumstances of the case. Order passed by the trial court amounts to refusal to exercise the jurisdiction vested in the court and therefore, needs to be quashed and set aside. 6 Order passed by the Civil Judge, Sr.Dn., Dhule dt. 15-3-2010 in Regular 4 Civil Suit no. 229/2008 is quashed and set aside and the application tendered by the plaintiff / petitioner at exh. 18 shall be deemed to have been allowed. The City Survey Officer would be proper authority to conduct measurement of the disputed property and submit his report. Trial court shall direct the City Survey Officer to conduct measurement of the property and submit his report to the court. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. 7 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp7611.10.odt