1 wp 3462.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3462 OF 2011 Kanta S/o Bhagwanrao Binwade, Age : 47 Years, Occu. : Agril., R/o Binwadewadi, Tq. Patoda, Dist. Beed. .. Petitioner Versus Prabhakar S/o Keshavrao Binwade, Age : 50 Years, Occu. : Agril., R/o Pargaon Road, Patoda, Tq. Patoda, Dist. Beed. .. Respondent Shri A. N. Nagargoje, Advocate for the Petitioner. Shri R. N. Dhorde, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH JUNE, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present respondent instituted a suit for simplicitor injunction restraining the defendant from interfering in the 2 wp 3462.11 possession. For some period the order of injunction was in favour of the plaintiff. The plaintiff moved an application U/O 39 Rule 2-A of the Code of Civil Procedure. During the pendency of said application the plaintiff filed an application for appointment of Court Commissioner purportedly to be U/O 26 Rule 9 of C. P. C. contending that the present petitioner by using JCB is trying to encroach and also trying to change the flow of stream. The Trial Court allowed the said application aggrieved thereby the defendant has filed the present petition. 3. Shri Nagargoje, the learned counsel submits that the Commissioner cannot be appointed to collect the evidence. The contentions raised in an application U/O 39 Rule 2-A and application for appointment of Commissioner are the same. The plaintiff is trying to collect the evidence by such an application, which is not permissible. According to the learned counsel, it is the plaintiff who is using the earth mover and is trying to change the flow of the stream. 4. Per contra, Shri Dhorde, the learned counsel for the defendant submits that the partition has already taken place. As per the decree the stream is bifurcating the land. But the 3 wp 3462.11 defendant inspite of the injunction order against him has changed the flow of the stream and has used the JCB to encroach upon the land of plaintiff. The Commissioner would be in a position to point out the said fact and to bring on record that the excavation has been made by the defendant. To appoint the Commissioner is a discretion of the Court and as the same has been exercised, it cannot be interfered in the writ jurisdiction. 5. It is trite law that the Commissioner cannot be appointed to collect the evidence. Moreover, no fruitful purpose would be served by appointment of commissioner. The defendant contends that the plaintiff has used earth mover, whereas the plaintiff comes with a case that, it is the defendant by use of JCB who has excavated the suit land and has tried to encroach. The plaintiff contends it is the defendant who has changed the flow and the defendant contends that the plaintiff i. e. the applicant who has done so. Whether the stream now flows from land of plaintiff or defendant by change of course cannot be said by a layman. Unless the land is measured encroachment cannot be verified nor one can come to the conclusion about the same. No fruitful purpose would be served by appointment of Commissioner. If the plaintiff feels that there would be some dispute about the boundaries of 4 wp 3462.11 the measurement, then the plaintiff is at liberty to apply for measurement by T. I. L. R. or other competent person. If such an application is filed, the Trial Court would consider the same on its own merits. Suffice it to state that the Commissioner appointed by the impugned order would not serve any purpose. In the result the impugned order is quashed and set aside. The rule is accordingly made absolute, however, no costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11