Writ petition 3622/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3622/2010 Rohidas s/o Ganpatrao Dodke, Age : 67 years, Occu. Agriculture, R/o Shindala (Lohara), Tq. Ausa, Dist. Latur. ....Petitioner. Versus 1 Mahadeo s/o Devidas Dodke, Age : 35 years Occu. Agriculture. 2 Bharatbai w/o Devidas Dodke, Age : 60 years, Occu. Household, 3 Uddhav s/o Devidas Dodke, Age : 32 years, Occu. Agriculture, Respondent Nos. 1 to 3 R/o Shindala (Lohara)Tq. Ausa, dist. Latur. 4 Sangita Rajaram Bhande, Age : 25 years Occu. Household, R/o Waghdari Tq. Udgir, Dist. Latur. ...Respondents. Mr. Amit Deshpande, for the petitioner. Mr. B.N. Patil, for respondent Nos. 1 to 4. CORAM : A.V. NIRGUDE, J. DATED : 29th March, 2011. ORAL JUDGMENT: 1. Rule. Made returnable forthwith. 2. This writ petition is filed against the order dated 22nd February, 2010 passed by the learned Civil Judge (Junior Division), Ausa on Exh. 48 in Regular Civil Suit No. 4/2010 in which the present petitioner is the defendant. The respondent / plaintiff filed this suit saying that the petitioner had encroached his land Gat No.240 of Writ petition 3622/2010 2 village Shindala Tq. Ausa Dist Latur for digging a bore well. It seems, the location of the bore well is very close to the boundary between lands Gat No.239 and 240. In order to ascertain as to where the bore well has been dug, the respondent / plaintiff made application Exh. 48, in which he requested the Court for appointment of Court Commissioner. He expected the Court Commissioner to take joint measurement of both the lands Gat No.239 and 240, ascertain the boundary between the lands and further ascertain as to whether the bore well is dug in land Gat No.239 or 240. The petitioner / defendant opposed this application. Despite his opposing the application and impugned order was passed. 3 This suit was filed on 04/01/2010. Admittedly, at that time a litigation on the same subject between the same parties was pending before the Tahsildar who had directed taking of the measurement of the lands in dispute and for marking the boundaries to find out as to where bore well was dug. It seems, on 14th or 15th January, 2010 in presence of the parties, the T.I.L.R. took joint measurement of the lands and recorded his finding that the bore well was dug in the land Gat No.239 and not in land Gat No.240. The respondent / defendant took advantage of this and placed reliance on the same in the written statement. A copy of map prepared by the T.I.L.R. was also filed on record by the respondent / defendant. After this and in this back ground, one has to appreciate the purport of the application Exh. 48 filed by the respondent / plaintiff. I am assuming for the sake of argument that the respondent / plaintiff does not accept the correctness of the joint measurement and the finding recorded by the T.I.L.R.. But that does not mean that he Writ petition 3622/2010 3 can obtain the impugned order for getting the lands remeasured through again the agency of the T.I.L.R.. The respondent / plaintiff had ample opportunity to challenge the correctness of the finding recorded by the T.I.L.R. by filing appropriate proceeding before the higher authority. In fact, when the suit was filed on 4th January, 2010, the measurements were not taken. Instead of filing the suit, the respondent / plaintiff should have first collected evidence in support of his claim, he could have collected such evidence by getting the lands measured, by competent authority and then placing reliance on the finding of the competent authority, in order to seek relief of recovery of possession etc.. At a belated stage, after filing the suit, the respondent / plaintiff in my view should not be allowed to make this application which appears to be an attempt to collect evidence to support his case. In the facts and circumstances of the case, the application Ex. 48 should not have been allowed. The respondent / plaintiff can be advised to withdraw this suit with a liberty to file fresh one after collecting required evidence in support of his case. ORDER Rule is made absolute. Impugned order dated 22nd February, 2010 passed by the learned Civil Judge (Junior Division), Ausa on Exh. 48 in Regular Civil Suit No. 4/2010 is set aside. [A.V. NIRGUDE, J.] ts k/2011/march29/wp3622.10/ok