{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7446 OF 2008 Najmoddin Rasul Patwari PETITIONER VERSUS Isulal Rasul Patwari and others RESPONDENTS ....... Mr.M.P.Gude, Advocate for petitioner Mr.V.R.Jain h/f Mr.S.S.Halkude, Advocate for respondent No.1 Mr.A.N.Irpatgire, Advocate for respondent No.2 ....... [CORAM : A.V.POTDAR, J.] DATE : 17th June 2009 PER COURT: 1. Challenge in this petition is to the order dated 25.11.2008 passed below Exhibit-68 in RCS No.258/2007 by the Joint Civil Judge, Junior Division, thereby rejecting the application of the petitioner for appointment of Court Commissioner under Order 26 Rule 9 of the Civil Procedure Code. 2. Heard learned counsel for the parties. With the assistance of the counsel, perused the record. {2} 3. It appears that the petitioner, who is the plaintiff in trial court has filed suit for simplicitor injunction against respondents alleging that the property mentioned in plaint para 2 is the joint family property. Here it is to be noted that the parties to the proceedings are Mohammedan and amongst Mohammedan and under the Mohammedan law, there is no concept of joint family and joint family property. It is also alleged that oral partition took place amongst the predecessor in title of the parties to the suit and under the said oral partition, the suit property came to the share of the petitioner / original plaintiff and since then he is in possession of the same. Therefore, he has filed suit for simplicitor injunction for not to disturb his possession. It appears that the respondents appeared in the suit and filed written statement and contested the same. During the pendency of the suit, an application at Exhibit-68 came to be moved under Order 26 Rule 9 of the Civil Procedure Code for appointment of Court Commissioner to ascertain the factual situation at site. In the said application, in para 2, it is contended that though the original defendants No.3 and 4 have supported the case of the petitioner, yet the respondent No.1/defendant No.1, has contested the suit on the allegations that the suit property is his self acquired property and the plaintiff has nothing to do with the same. On the basis of the say given by the respondents No.1 and 2, to oppose the application, and after hearing both the sides learned trial court rejected the application and the said order is under challenge in this petition. {3} 4. The trial court has observed that it is stated by respondent No.2 that in respect of partition of the suit property an appeal is pending in the district court at Latur. Thus, from the observations it is clear that the factum of partition is subjudice and the appeal is pending. In such circumstances application for appointment of court commissioner to collect evidence, is not permissible in law. In the premises, no fault can be found with the order passed by the trial court. Hence, the writ petition, which is devoid of any merit, is dismissed in liminie with no order as to costs. [A.V.POTDAR, J.] drp/wp7446-08