1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5967/2010 (Shabbir Shahmalak Zahid Hussain & another VERSUS Dr. Kaneez Ayasha Mohamad Burhan) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.S. Chandurkar, counsel for the petitioners. Shri S.C. Mehadia, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 7 , 2011 . By this petition, the petitioners impugn the order passed by the trial Court on 20.11.2009 allowing the application filed by the plaintiff and the defendants and appointing a City Survey Officer to admeasure the plots of the plaintiff as well as the defendants and submit a report in regard to the same before the Court. The trial Court also made it clear that the appointment of the Commissioner by the impugned order dated 20.11.2009 would not affect the hearing of the application for grant of temporary injunction. On hearing the learned counsel for the parties and on perusal of the documents, it appears that the respondent-plaintiff was the owner of certain lands and she had sold land admeasuring 61600 square feet out of her land to the defendant nos.1 and 2. The defendant nos.1 and 2/the petitioner were trying to make construction on the land, which was adjoining the land admeasuring 61600 square feet, purchased by the defendant nos.1 and 2 and, hence, the respondent-plaintiff instituted a suit for a 2 permanent injunction restraining the defendants from interfering, discharging or dispossessing the plaintiff from her land and/or from making any construction on the area other than the area admeasuring 61600 square feet sold to the defendants. Since the defendants denied the claim of the plaintiff and also denied that they were making any construction on the area of land belonging to the plaintiff, the plaintiff applied to the trial Court seeking an appointment of a commissioner to admeasure the land of the plaintiff as well as the defendants. Similarly, the defendants also filed an application to admeasure the land of the plaintiff i.e. excluding the land on which the defendants were making the construction by appointment of a commissioner. Both these applications were considered by the trial Court and by the impugned order dated 20.11.2009, the trial Court appointed a commissioner to admeasure the lands of the plaintiff as well as the defendants and submit a report in regard to the measurement, to the Court, at the earliest. The order passed by the trial Court on 20.11.2009 appointing a commissioner to admeasure the land of the plaintiff as well as the defendants appears to be just and proper and does not suffer from any apparent error. The trial Court rightly observed that the application filed by the plaintiff as well as the defendants for appointment of the commissioner clearly showed that there was a dispute regarding the area in possession of the defendants and there was also a dispute whether the construction was made by the defendants on the land of the plaintiff. 3 Since this was a case of alleged encroachment, the trial Court did not commit any error in appointing a commissioner to measure the land of the plaintiff as well as the defendants. It cannot be said that the trial Court should have directed the appointment of a commissioner only for measuring the land of the plaintiff and not the defendants as sought by the application filed by the defendants as the grant of such a prayer would not serve any purpose as in a case of an alleged encroachment, it is always necessary to jointly measure the lands of the plaintiff as well as the defendants. Since the order does not suffer from any jurisdictional error, there is no scope to interfere with the same in exercise of the writ jurisdiction. The petition fails and is dismissed with no order as to costs. JUDGE APTE