(1) WP. 255.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.255 OF 2010 Haribhau S/o Vaijnath Kotalwar .. Petitioner VERSUS Uttam S/o Santram Salunke .. Respondent Ms. Tejaswini V. Adhav, Advocate h/f. Ms. Anjali Bajpai Dube, Advocate for the Petitioner Mr. L.B. Palod, Advocate h/f. Mr. B.A. Darak, Advocate for the respondent ... CORAM : V.R. KINGAONKAR, J. DATED : 21ST JUNE, 2010 ORAL ORDER:- 1] By this Petition, the petitioner impugns order dated 30.9.2008 rendered by the learned 5th Joint Civil Judge (Junior Division) Latur in suit (Regular Civil Suit no.476 of 2005) filed by the petitioner for perpetual and mandatory injunction. 2] The petitioner filed Application (Exh.22) for appointment of Court Commissioner. In his application he sought the appointment of the T.I.L.R., Latur, with particular directions (page 41 and 42). Though the directions sought were specific and particularly the petitioner's case was that it (2) WP. 255.2010 was necessary to locate whether construction of house property was within the triangular portion which was allegedly encroached over by the defendant. Even so, the trial Court passed the order as below:- " ORDER T.I.L.R. Latur is hereby appointed as a Court Commissioner. He shall admeasure the land Sy.No.67 and Sy.No.77/1A situate at Khadgaon Latur and draw a map on a single paper showing the situation thereby. Plaintiff shall deposit requisite charges." 3] Considering the text of the said order, the T.I.L.R. carried out the measurements but did not mention the fact situation about the construction of house property. The petitioner again made an application seeking indulgence of the trial Court for re-appointment of the Commissioner to clarify the fact situation after visiting the spot again. The said application (Exh. 26) came to be dismissed. The trial Court held that since the land was measured, it was not necessary to direct the Court Commissioner to again visit the suit land and carry out the measurement. 4] Heard learned counsel. Perusal of the impugned order shows that the learned Civil Judge has not properly appreciated the fact that in the (3) WP. 255.2010 previous application (Exh.22) there was a specific prayer made by the petitioner to issue directions, including a direction to indicate the location of construction allegedly made by the defendant. Since the order of the trial Court was unspecific, the T.I.L.R. simply measured the lands and gave the report. The error occurred due to unspecific directions of the Court, and therefore, it was necessary to remove the ambiguity. The trial Court has not properly exercised the discretion while rejecting the application. In fact, the said application (Exh.26) was filed in order to reiterate the request for ascertaining the position of the illegal construction which was allegedly made by the defendant on encroached portion. In this view of the matter, the impugned order is quite arbitrary and unsustainable. 5] In the result, the Petition is allowed. The impugned order is set aside. The trial Court is directed to re-appoint the Court Commissioner in terms of prayers made in the earlier application (Exh.22) and also by giving specific direction to point out the position of the construction made by the defendant and to give opinion whether it is within the triangular portion pointed out by the petitioner or it is outside the land of the petitioner, as the case may be. The petitioner to deposit the Commissioner's fees within a period of 2 (4) WP. 255.2010 weeks and the Commission shall be executed within a period of 4 weeks thereafter. The Petition disposed of. Sd/- [V.R. KINGAONKAR, J.] arp