1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.4249 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 21.06.2011. 1. Heard. 2. The petitioner is original plaintiff, who had filed the suit for partition and separate possession and for injunction. The petitioner examined four witnesses. Thereafter, moved an application for appointment of Court Commissioner for giving a report regarding location of the well. The trial Court rejected the said application. Aggrieved thereby, the present Writ Petition is filed. 3. Mr.Garud, learned counsel for the petitioner vehemently submitted that the brothers of the petitioner have sold the property and had 2 falsely represented that the well exist in the said land. In fact, no such well exist. It is the Commissioner who would be in a position to tell as to whether the well exist in Gat No.153/2 or Gat No.153/3. According to the learned counsel the said fact can not be proved by evidence of witnesses. The appointment of Commissioner would be relevant and would assist the Court in arriving at the just conclusion. 4. It is a trite law that the Commissioner can not be appointed to collect the evidence. Moreover, the appointment of Commissioner is a discretion of the Court. The trial Court dealing with the matter has observed that the plaintiff can examine any other person who is acquainted with the location of the well. 5. The reasoning does not suffer from any illegality. The petitioner is at liberty to prove the location of the well even by expert evidence. If the petitioner files such an application, the trial Court shall consider the same on its own merits. 3 The Writ Petition is accordingly dismissed. No costs. (S.V.GANGAPURWALA,J.) Dt.21.06.2011. asp/office/wp4249.11