1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1579OF 2008. Gulab Gunwant Birajdar and ors. .... PETITIONERS. VERSUS Shantabai w/o Shantappa Parudkar. .... RESPONDENT. ... Shri S.S. Halkude, Advocate for Petitioners. Respondent Served. ... CORAM : S.S. SHINDE, J. DATE : 28th JULY, 2009. PER COURT: 1. This petition is filed challenging the orders below Exh.6 and 37 in R.C.S. No.238 of 2005 dated 23rd October, 2007 passed by the Civil Judge, Junior Division, Ausa, District Latur. 2. The respondent herein is original plaintiff who had filed R.C.S. NO.238 of 2005 before the C.J.J.D., Ausa against the petitioners herein who are original defendants, for declaration of ownership and possession of suit land admeasuring 28 gunthas in Survey No.262 (Old Survey N.163 and 213) situated at Karla, Tq. Ausa, Dist. Latur. 2 3. On 17.6.2005, the respondent -plaintiff had filed an application (Exh.6) for appointment of commissioner, T.I.L.R. For measurement of suit land. 4. On 31st January, 2007, the petitioners – defendants had filed application (Exh.37) in the lower court for appointment of commissioner for inspection and recording of structures, temples, well, trees, common bandh etc. on the suit land. On 23rd October, 2007, the learned C.J.J.D., Ausa decided both the applications. The application filed by the petitioners for appointment of commissioner came to be rejected and the application filed by the respondent – plaintiff for appointment of Commissioner / T.I.L.R. for measurement of suit land came to be allowed. 5. Being aggrieved by the order passed by the C.J.J.D., Ausa dated 23rd October 2007, the petitioners filed the present writ petition. The learned Counsel for the petitioners submitted that when there is no encroachment by the present petitioners on the land of the respondent, there was no need to appoint T.I.L.R. for measurement of the land. When the common boundary between the land of the petitioners and respondent is in existence, there was no need either to appoint commissioner or T.I.L.R. At the instance of the respondent who is original plaintiff. The Bandh is intact and not destroyed. Therefore, it was not necessary to entertain the application of the respondent herein for appointment of 3 T.I.L.R. / Commissioner. The learned Counsel further submitted that the application filed by the present petitioners should have been entertained since it was prayed that by the petitioners that it is necessary to appoint commissioner for visiting the land and making an inquiry in the matter. According to the learned Counsel, the appointment of the court commissioner by allowing the application of the petitioners was necessary for local investigation and to assess the real position. Though the respondent is served, none appears for the respondent. 6. I have perused the orders passed by the learned Judge below Exh. 6 and Exh.37. While allowing the application of the original plaintiff / respondent for appointment of court commissioner / T.I.L.R. for measurement of lands in dispute, the court observed that the suit has been filed for declaration of ownership and possession of the suit land. The defendants i.e. petitioners herein have denied the possession of the plaintiff on the suit land. The dispute in the suit is about the area and for proper judgment and order in the suit and for deciding the real question in the suit, measurement of land is necessary and therefore, the application filed by the original plaintiff below Exh.6 came to be allowed by appointing T.I.L.R. As court commissioner. The T.I.L.R. has been directed to measure the suit lands and send report to the court as early as possible and the plaintiff was directed to deposit measurement charges with the Taluka Inspector of Land Records. 4 7. While rejecting the application (Exh.37) filed by the petitioners, the lower Court framed points for its determination and observed in paragraph 8 that for deciding the real question of dispute in the suit the request for appointment of Court Commissioner is not necessary because the real question in the suit is whether the defendants have made encroachment on the suit land or not. The plaintiff had filed application (Exh.6) for getting the land measured through T.I.L.R. , Ausa and the said application is allowed. Therefore, the report which wold be submitted by the T.I.L.R. would be enough to decide whether the defendants made encroachment on the suit land or not.. Therefore, the lower Court felt that prayer made in the application filed by the petitioners / defendants is not necessary to be entertained. It is further observed that the application is vague and unclear. Appointing any Commissioner on the request of the petitioners herein would not be useful to resolve the controversy in the suit and, therefore, the application (Exh.37) filed by the petitioners came to be rejected. 8 On careful perusal of the reasons recorded by the lower Court while allowing the application below Exh.6 and rejecting the application (Exh.37), the Court has given proper reasons in support of its order. The Court has come to the proper conclusion that the suit is filed by the respondent herein who is original plaintiff and if the T.I.L.R. is appointed as Commissioner and directed to measure the suit land, it will be helpful to resolve the controversy in the matter. Once the application of the 5 plaintiff was entertained by appointing T.I.L.R., as Court commissioner and further directing him to measure the suit land and send report to the Court, it was not necessary to entertain the application filed by the petitioners herein below Exh.37. Therefore, there is no any reason to interfere in the orders passed by the 2nd Joint C.J.J.D., Ausa on 23rd October, 2007 below Exh.6 and 37. Writ Petition is devoid of merits and the same is dismissed. [ S.S. SHINDE, J ] ...