1 WP No. 9005 of 2005 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9005 OF 2005 Uttam Ambadas Rai ... Petitioner Versus Anil @ Navinchandra Mahadev Rai ... Respondent Mr. Sachin Gite, Advocate for petitioner. Mr. P.S. Dani, Advocate for respondent. CORAM : SMT. R.P. SONDURBALDOTA,J. DATE : OCTOBER 12, 2010 P. C.: This petition filed under Article 227 of the Constitution of India seeks quashing of the order dated 15.10.2005 passed by Jt. Civil Judge, Junior Division, Nashik on the application at Exh. 17 in Regular Civil Suit No. 327 of 2005. Petitioner is defendant in the suit and the respondent is the original plaintiff. The impugned order rejects application filed by the petitioner for appointment of the Court Commissioner for ascertaining measurement of the wall situate between City Survey No. 1478A and 1476 and also the boundaries of the two 2 WP No. 9005 of 2005 properties. 2. The brief facts giving rise to the present petition are as follows : The respondent is the owner of the property at C.T.S. No. 1478A and the petitioner is the owner of adjoining land at C.T.S. No. 1476. The dispute in the suit relates to a wall admeasuring 60 ft in length, 45 ft. in height and 1.25 ft. in width constructed by the respondent in the year 1949. According to the respondent, the wall belongs to him and is situate on his own property whereas the petitioner contends that the respondent has encroached on his land by constructing the wall on the petitioner's land. It is the case of the respondent that in the year 1949 when his father planned to construct a new house by demolishing the existing structure, the father of the petitioner requested that a wall should be constructed touching the southern wall of the petitioner's house so that it would provide support to the southern wall which was weak. Father of the respondent accepted the proposal and there were two agreements entered into dated 18.2.1949 which have been registered with the Sub Registrar bearing Sr. Nos. 335 and 336. Respondent claims that though the wall was to be constructed jointly by sharing the cost of construction, the father of the petitioner did not make any contribution to the cost of construction. Later in February, 1975, the structure of the 3 WP No. 9005 of 2005 petitioner was completely gutted in fire. Thereafter, the petitioner constructed a new structure on his land. But it is alleged that while carrying out the construction, he has carved out 7 inch portion from the width of the wall constructed by the respondent's father. It is also alleged that the petitioner is trying to erect R.C.C. partition with the support of the wall. Therefore, the respondent sought permanent injunction to restrain petitioner inter alia from damaging the wall or from using it as a support for his structure. 3. The petitioner in his written statement, denies the dimensions of the wall as 60ft x 45 ft x 1.25ft. He however, does not specify what are the correct dimensions of the wall. He also claims that the wall belongs to him. Immediately after filing of the written statement, the petitioner filed the application at Exh. 17 under Order 26 Rule 9 of Code of Civil Procedure for appointment of City Survey Officer as Court Commissioner for measurement of the two lands at C.T.S. No. 1478A and 1476 as also dimensions of the disputed wall. In the said application, the petitioner submitted that the oral evidence adduced by the parties would not be sufficient to decide the issues as regards the dimensions of the wall, its ownership and date of construction of the wall. The trial 4 WP No. 9005 of 2005 Court dismissed the application on the ground that is is in the nature of collection of evidence through the agency of the Court. It also noted that the burden to establish the ownership and dimensions of the disputed wall is on the respondent and not upon the petitioner. One fails to understand as to how the City Survey Officer in his report can make comments upon the dimensions of the wall, date of the construction of the wall and the title to the wall. Hence, the trial court has rightly rejected the same. It is for the parties to prove their respective contentions by adducing evidence and not to collect evidence through the machinery of the Court. Hence, the petition is dismissed. Rule discharged. (SMT. R.P.SONDURBALDOTA,J.)