1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.3871 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 : 16.06.2011. 1. Heard. 2. The present petitioners are the original defendants. The Respondents had filed the suit for injunction restraining the defendants from interfering in their possession. During pendency of the suit, the present petitioners moved application purportedly U/o 26 Rule 9 of the C.P.C. read with Section 75 of the C.P.C., seeking appointment of the Commissioner to inspect the position of the lands, bandhs, borewells and the existing crops. The trial Court rejected the said application. Aggrieved thereby, 2 the defendants have filed the present petition. 3. Mrs.Madhaveshwari D. Thube Mhase, learned counsel for the petitioners submits that taking into account the nature of the dispute between the parties, the appointment of Commissioner would assist the Court in arriving at the just conclusion. The whole dispute revolves around the situation of the Bandhs and the properties. The same can be brought on record by appointment of Commissioner. It was erroneous on the part of the trial Judge to observe that the application is filed for collecting evidence. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade" reported in 2004 (2) Mh.L.J. 722 and the judgment in a case of "Kisanlal Maniklal Rathi Vs. Dinkar Yashwant Patil" reported in 2004 (1) Mh.L.J. 138. 4. It is a trite law that Commissioner can not be appointed to collect the evidence. In the present case the dispute is not regarding the 3 encroachment. In such circumstances, the judgments of the learned Single Judge of this Court in a case of ""Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade" and "Kisanlal Maniklal Rathi Vs. Dinkar Yashwant Patil" referred supra would not apply. The petitioners can prove the situation of the Bandhs and the nature of the property by adducing independent evidence. In light of that the discretion exercised by the trial Judge can not be said to be erroneous. As such no interference is called for in writ jurisdiction under Article 227 of the Constitution of India. 5. The Writ Petition as such is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.16.06.2011. asp/office/wp3871.11 4