1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 5685 OF 2007 (Suryakant Harishchandra Pahurkar .v. Prakash Shrivallabhji Mundada) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri A.P. Tathod, Advocate for the petitioner. Shri N.R. Saboo, Advocate for the respondent. CORAM : B.R. GAVAI, J. 4TH FEBRUARY, 2008. Heard the learned Counsel appearing on behalf of the respective parties. By way of present petition, the petitioner challenges the order dated 4th August, 2007 vide which an application filed by the present petitioner for appointment of the Commissioner has been rejected. The respondent has filed a suit for declaration and permanent injunction against the petitioner contending that he is the owner of the suit field. Further declaration is sought restraining the defendants from interfering with the peaceful possession of the plaintiff. It is contended that the plaintiff was not in the possession of the suit field and, therefore, for finding out the factual position regarding the possession, a Commissioner needs to be appointed. The said 2 application is rejected. Hence, the present petition. Shri A.P. Tathod, the learned Counsel appearing on behalf of the petitioner submits that in order to find out the factual position and the correct picture, it was just and necessary in the interest of justice that the learned trial Court ought to have appointed the Commissioner. He submits that if the Commissioner would have been appointed it would have facilitated the learned trial Court in arriving at just conclusion. He, therefore, submits that the order impugned needs to be quashed and set aside. Shri N.R. Saboo, the learned Counsel appearing on behalf of the respondent submits that the application was in the nature of collecting evidence and the same has been rightly rejected by the learned trial Court. The learned Single Judge of this Court in the case of Sanjay Namdeo Khandare .v. Sahebrao Kachru Khandare and others (reported in 2001(2) Mh.L.J., 959) has held that the appointment of the Commissioner cannot be permitted so as to enable the party to collect evidence in support of his case. The suit in question is filed by the plaintiff on the basis of the title. It is, therefore, for the plaintiff to prove that he has a title over the property. The same can 3 be rebutted by the defendant by leading necessary evidence. In that view of the matter, I do not find any perversity in the approach adopted by the learned trial Court so as to warrant any interference. Hence Writ Petition is rejected. JUDGE *rrg.