1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5990 OF 2009 BALASAHEB BHIVSEN KATE & OTHERS ..Petitioners V/S DADA DASHRATH KATE AND ANOTHER ..Respondents ... Advocates appearing for : Petitioner : Shri R.N.Bhapkar, Respondent 1 : Served and Respondent 2 : Shri S.V.Natu. ... CORAM : S.B.DESHMUKH,J. Dated : 2.2.2010 PER COURT :- 1. Heard respective counsel. 2. Rule. By consent, Rule made returnable forthwith. 3. Petitioners are defendants in RCS No.168 of 1995 and respondents are plaintiffs. The suit was for perpetual injunction against defendants restraining them from breaking common bandh from Southern side of the suit property and not to commit encroachment over the suit property. Prayer clause (B) seeks measurement of the plaintiffs suit property. In case the Measurer comes with the case of encroachment by 2 the defendants, liberty was also sought for amending the copy of the plaint. 4. After service, defendants appeared and filed Written Statement - Exhibit “B”. Plaintiffs had filed an application Exhibit 105 in the trial Court on 22.9.2003 referring to the earlier measurements and prayed for appointment of the Commissioner of Land Records for measurement of the lands, since earlier conflicting maps have come on record of the measurements carried out by the authorities of the department. Trial Court allowed the said application on 18.2.2004. Commissioner of Land Records was appointed as a Court Commissioner and the plaintiffs were directed to deposit necessary charges with the said office. This order was not subjected to challenge before any Court by any of the parties and has thus attained finality. 5. On this background, defendants filed an application Exhibit 108 in the trial Court on 16.2.2009 alleging that the plaintiffs, though ordered earlier, have not deposited Rs.12,500/- towards Commissioner’s fees just to protract the litigation and therefore, it was prayed that the measurement of the suit property be carried out by District Inspector of Land Records, Ahmendagar. This application was conceded by plaintiffs. Copy of the reply to said application is at Exhibit “F”. The trial Court, while rejecting the said application, observed that even if the plaintiffs have given no objection, it is not proper to grant this application as there 3 are already two maps on record. Said order is passed on 22.6.2009. It is challenged in the present writ petition. 6. Allegation of encroachment on agricultural land is natural phenomenon in this part of the State. Remedy available to the parties is to approach the DILR or TILR. There is no other remedy available to the litigating parties. In other words, measurements carried out by the private experts may not help the parties to resolve the dispute since the DILR / TILR possesses the original record as well as record created and handed over by the concerned authorities under the provisions of the Bombay Prevention of Fragmentations and Consolidation of Holdings Act, 1947. In the case on hand, allegations are made that there are two contra maps on record. Issue is not resolved. Defendants justifiably had asked for measurement by DILR, who is head of Survey Department in the district. The learned Judge, despite the no objection of plaintiffs, rejected the application on perverse grounds. Controversy amongst the parties pertaining to encroachment needs to be resolved finally. In my view, order impugned is perverse and needs to be set aside while exercising extra ordinary jurisdiction of this Court. 7. Writ Petition is allowed. Impugned order is quashed and set aside. Application Exhibit 108 stands allowed. Plaintiffs are hereby directed to deposit Rs.12,500/- on/or before 3.3.2010. The learned trial Court is further requested to issue appropriate direction to District 4 Inspector of Land Records, Ahmednagar to carry out the measurement on/or before 30.5.2010 in accordance with provisions of law and submit a report thereof on/or before 15.6.2010 in the trial Court. Since the suit is of 1995, learned Judge shall decide and dispose of the suit by the end of 31.12.2010. Parties, through counsel, have assured cooperation in disposal of the suit. 8. Rule is accordingly made absolute in above terms with no order as to costs. ( S.B.DESHMUKH, J.) ... akl