:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2104 OF 2008 Shri Jayram Bistir Bhoir and anr. ..Petitioners Vs. Shri Praveen Narayan Bhoir and ors. ..Respondents Mr. R.D. Suryawanshi for petitioners. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : March 31, 2008. Date : March 31, 2008. Date : March 31, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Suryawanshi the learned counsel for the petitioners who are plaintiffs in RCS No. 90 of 2004. The said suit was decreed in favour of the plaintiffs by a declaration and perpetual injunction regarding the suit road as per the Judgment and Order dated 27/2/2006 rendered by the learned Joint Civil Judge, J.D., Palghar. The said decree has been challenged in Civil Appeal No. 27 of 2006. The appeal was heard from time to time and as per Mr.Suryawanshi after the appeal was reserved for judgment, the Lower Appellate Court suo motu passed :2: the impugned order dated 3/3/2008 for the appointment of the Court Commissioner. As per Mr.Suryawanshi the plaintiffs have proved their title as well as the existence of the suit road and, therefore, the impugned order has been passed suo motu without any authority in law. 2. The Lower Appellate Court in the impugned order noted that the Revenue Circle Inspector who was examined before the trial court had stated that the map prepared by the T.I.L.R. was not in scale and it was without taking into consideration the ‘tipan-utare’. The Lower Appellate Court also noted that the defendant had placed on record a rough sketch of the suit road. The plaintiffs were claiming perpetual injunction against the defendants restraining them from using the suit road and, therefore, so as to ascertain whether the road exists the Lower Appellate Court thought it fit to appoint Advocate Shri R.S. Mogare as the Court Commissioner to inspect the land owned by the respective parties and to submit a report about the existence or non existence of the suit road as stated by the plaintiffs :3: in the plaint. The Court Commissioner was directed to submit a report by 11/3/2008. 3. The order passed by the Lower Appellate Court is in aid of the final decision and in any case when the Court Commissioner’s report is placed on record, the parties rights to argue on or object to the same are not take away and hence there is no need to interfere with the interlocutory order more so when the Court Commissioner was directed to submit the report on 11/3/2008. 4. Hence, the petition is rejected summarily. Regular Civil Appeal No. 27 of 2006 be heard and decided before 31st May, 2008. Writ to go forthwith. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)