1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.1613 OF 2009 WITH C.A.NO.16085 OF 2010 WITH C.A.NO.9846 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr. Mr.D.B.Rode, advocate for the petitioner. Mr.Sandeep S. Deshmukh, advocate for Respondent Nos.1 and 2. Mr.S.S.Kulkarni, advocate for Respondent Nos.3 and 4. CORAM : S.V.GANGAPURWALA,J. Date : 25.08.2011. 1. Heard. 2. The present petitioner is the original plaintiff who has filed a suit for declaration, possession. During the pendency of the suit, the petitioner moved an application for appointment of Court Commissioner. The said application is rejected. Aggrieved thereby, the present petition 2 is filed. 3. Mr.Rode, learned counsel for the petitioner submits that whenever there is a dispute regarding the identity of the property or the boundaries, the same can be resolved only by measurement carried out by an expert. For the said purpose, the learned counsel relies on the judgment of the Apex Court in a case of "Haryana Waqf Board Vs. Shanti Sarup and others" reported in 2008 AIR SCW 6500 and another judgment of the learned Single Judge of this Court in a case of "Kolhapuri Bandu Lakade Vs. Yallappa Chinappa Lakade, dead through L.Rs. - Pooja @ Poojari Y.Lakade and others" reported in 2011 (3) Bom.C.R. 807. 4. Mr.Deshmukh, learned counsel for the Respondent Nos.1 and 2 submits that the petitioner does not have any land available in the said Gat No.68. The husband of the petitioner and the petitioner have sold the land to the Respondents and whatever land remained with the petitioner, the same went in acquisition. Now the petitioner does not own and possess any land 3 in said Gat No.68. According to the learned counsel, no purpose would be served by appointment of the Commissioner. Even no details are given about the area allegedly encroached. The Commissioner can not be appointed on such vague averments. 5. Whenever the dispute regarding the boundaries or about encroachment is to be resolved, it is desirable to take assistance of an expert. Section 75 read with order XXVI Rule 9 of the C.P.C. gives jurisdiction to the Court to appoint the Commissioner for such purpose. Even the Apex Court in a case of "Haryana Waqf Board Vs. Shanti Sarup and others" and this Court in a case of "Kolhapuri Bandu Lakade Vs. Yallappa Chinnappa Lakade dead through L.Rs. Pooja @ Poojari Y.Lakade and others" referred supra, have held that in a dispute about encroachment and the demarcation of the disputed property, the assistance of expert can be taken. 6. The present dispute is with regard to the area allegedly claimed by the petitioner in his 4 occupation and the area allegedly encroached by the Respondents. 7. In view of the above conspectus/facts, it is a fit case to appoint TILR as Court Commissioner to measure the lands. The TILR shall consider the record available with the office, the pleadings of the parties and the documents and thereafter carry out the measurement of land Gat No.68 situated at village Velu, Tq.Shrigonda, Dist.Ahmednagar. The petitioner shall bear the charges of the Commission. The Commissioner shall after issuing notices to all the parties, measure the land Gat No.68 situated at Velu, Tq.Shrigonda. 8. Rule accordingly made absolute with aforesaid observations. 9. The Civil Applications also stand disposed of. (S.V.GANGAPURWALA,J.) Dt.25.08.2011. asp/office/wp1613.09 5