1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.384 OF 2010 LAXMAN NAMDEO INGALE AND ANR. Petitioners V/S VIJAYKUMAR JAGANNATH AGRAWAL AND ANR Respondents. Mr. R.S. Shinde, advocate for the petitioners. CORAM : S. B. DESHMUKH, J. DATE : 18TH JANUARY, 2010. PER COURT :- 1. Heard learned counsel for the petitioners. Petitioners are plaintiffs in RCS No.90/2008. Petitioners have filed RCS No.90/2008 in the Court of Civil Judge (J.D.), Kalamnuri District Hingoli. Petitioners suit seems to have been filed on December 12, 2008. Copy of the plaint annexure ‘B’ to this petition shows that, in a suit filed by the petitioners, they have sought decree of perpetual injunction against the defendant, his agent and servants from prohibiting the petitioners from using public road which is towards eastern side of the suit property/plots of the petitioners. The defendants, after entering appearance, filed their written statement. Copy is on record Annexure ‘C’. This written statement was filed by the defendants on February 4, 2009 requesting the learned Judge to dismiss the suit with costs. 2 Thereafter petitioners have filed application seeking appointment of Commissioner for local inspection under order 26 Rule 9 of the Code of Civil Procedure on 19th September, 2009. At annexure ‘D’ copy of the application is produced on record. It is stated in this application by the petitioners that Town Planning Department of Parbhani has prepared a lay out of the lands of the defendants on May 9th, 1985. In this lay out, D.P. road of 12 Meter width has been shown. This road is towards eastern side of the plot of the plaintiffs and to the western side of the plot of the defendants. It is further pleaded in this application by the petitioners that towards western side of the plot of the defendants, there is no plot of the defendants. Thereafter reference is made to the written statement filed by the defendants. It is further pleaded in this application by the petitioners that there is a controversy in relation to existence of road or public way towards eastern side of the plaintiffs property i.e. suit plots. In other words, according to plaintiffs, real controversy is regarding the existence of the public road in between suit property and plaintiff’s land. It is further pleaded in this application that, if such road is existence, then to the western side of this road, how much land of the defendant has remained. For these two purposes, prayer is made for appointment of T.I.L.R. Kalamnuri as Court Commissioner, for carrying out measurements of both the lands i.e land of the plaintiffs and land of the defendants. 2. In support of submissions, counsel appearing for the petitioner 3 relied on the Judgment of the learned Single Judge of this Court in the matter of Kashinath Ramakrishna Chopade V/s Purushottam Tulshiram Tekade and others reported in 2005 (6) Bom. C. R 267. It was second appeal No.373/1989 before learned single Judge of this Court at Nagpur. Said suit was for declaration and perpetual injunction. There in that suit, plaintiffs had contended that, the defendants have committed an encroachment and removed 3 of 4 layers of bricks from the plaintiff’s wall. In written statement filed in that suit defendant had pleaded that alleged encroached area was of the defendant. There was a tin shed of defendant. Defendant had removed tin shed for carrying out permanent (pakka) construction. The contention regarding plaintiff, pertaining to his wall, is claimed by the defendant to be jointly owned by them. There was a dispute about title of the plaintiffs. Grievance was raised that the learned Additional District Judge has discarded the oral evidence adduced and held that the plaintiff had a title to the property. Learned Additional District Judge did not go into oral evidence of the parties, neither considered the sale deed and admissions and decided the appeal. There was map filed along with suit in that case drawn on the basis of measurement available in the sale deed. This court has referred to Section 83 of the Evidence Act in paragraph No.8. There in that reported case, in paragraph No.11, Learned Judge thought it fit to appoint a Court Commissioner in the case of boundary disputes and disputes about the identity of the lands. Ultimately, in paragraph No.13, about City Surveyor, Court opined that, ought to have been appointed, when the question arises as 4 to whether any encroachment has been made or not. 3. I have given anxious consideration to the pleadings and facts in the case on hand and facts which were brought before this Court in the reported judgment. In my view, facts are totally different. This reported judgment does not help the petitioners. 4. Counsel appearing for the petitioners relied on another reported judgment in the case of Haryana Waqf Board Vs. Shanti Sarup and others reported (2008) 8 Supreme Court Cases 671. The Hon’ble Supreme Court has discussed with the facts in paragraph Nos. 2 and 3 of the judgment. There in that case dispute was pertaining to alleged encroachment upon the land of the plaintiff-appellant. There in that case application under Order XXVI Rule 9 of the Code of Civil Procedure was filed in the trial court which was rejected. From paragraph No.6 of the reported judgment, it appears that before the appellate Court, plaintiff had filed an application for appointment of local Commissioner for demarcation of the suit land. Honourable Supreme Court has observed that in our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. Therefore, dismissal of the second appeal was set aside by the Honourable Supreme Court and matter was restored on the file of the High Court. Again, I have considered the facts of the reported judgment to that of present case. In foregoing paragraphs, I have referred to pleadings of the plaintiff and relief 5 sought by the plaintiff. Ratio of this judgment has no application to the facts of the present case. 5. Counsel appearing for the petitioner relied on judgment of Single Judge of this court in the matter of Girish Vasantrao Bhoyar and another Vs. Nimbaji Warluji Bambal reported in 2009 (9) LJ SOFT 86. There the RCS No. 110/2004 was pending in the trial court. An application for appointment of the Commissioner Under Order XXVI, Rule 10A was filed. Suit was for restoration of possession, recovery of damages and to remove the encroachment allegedly committed by respondent. Contention was raised that there was a dispute regarding area and boundary of the field of the respondent. Trial Court in that case by order dated July 18, 2008 appointed T.I.L.R. Kalameshwar as Court Commissioner to measure the suit land i.e S.No.175 and land gat No. 41. There in that case, grievance was raised that such order passed by the trial court, is permitting the collection of evidence and was challenged before this Court. Learned Single Judge of this Court observed that there is no jurisdictional error committed by the learned judge. Petition, therefore, was dismissed. I have considered facts of this reported judgment only to say that nature of the suit was different to that of the case on hand. 6. One more aspect in the present case is that the defendants have filed their reply to the application filed by the petitioner for appointment of Court Commissioner. It is on record (page 38). In paragraph No.2 of the 6 reply, it has been contended that on behalf of plaintiffs No.1, evidence of one Mr. Kothari is over. Petitioners are trying to create evidence by seeking appointment of the T.I.L.R. In paragraph No.5, specifically therein it has been pleaded that appointment of the T.I.L.R. as commissioner does not warranted for the reason that issue of encroachment was not between the parties. Even in the plaint, it has been stated that there is no allegations of alleged encroachment by the defendants. This reply was filed somewhere on September 29,2009. 6. Trial court in its order has referred to the evidence of Mr. Kothari examined on behalf of the plaintiffs. Trial court has opined that appointment of court commissioner in the case on hand seems to be for collection of evidence. Trial Court rejected the application. In my view, there is no jurisdictional error committed by the trial court. Order impugned cannot be said to be perverse or contrary to the provisions of Order 26 Rule 9 of the Code of Civil Procedure Code. 7. In the result, petition, since devoid of substance, stands dismissed. No order as to costs. ( S. B. DESHMUKH, J. ) ..... aaa/384.10