1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 1247/2011 (Gajanan K. Tappe & others VERSUS Keshaorao G. Awachar & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri V.P. Maldhure, counsel for the petitioners. CORAM : SMT. VASANTI A. NAIK, J. DATE : MARCH 11 , 2011 . By this petition, the petitioners impugn the order passed by the Principal District Judge, Akola on 26.11.2010 allowing an application filed by the respondents/plaintiffs for measuring the land of the petitioners as well as the respondents. The respondents are the original plaintiffs. They had filed a suit against the defendants/petitioners for possession on the ground that the defendants had encroached upon 28 Gunthas of land belonging to the plaintiffs. The trial Court dismissed the suit on the ground that the encroachment was not proved. Before the first appellate Court, an application was moved by the plaintiff for appointment of a Court Commissioner/T.I.L.R. For measuring the land of the plaintiffs as well as the defendants as the measurer, who carried out the measurements before the trial Court, had not measured the lands of both, the plaintiffs and the defendants. Though the prayer made in the application was denied by the petitioners, the first appellate Court, by the impugned order dated 26.11.2010, appointed T.I.L.R., Patur for measuring the 2 land of the petitioners as well as the respondents including the Shivdand. The order passed by the first appellate Court appears to be just and proper as in the case of encroachment, it is necessary to appoint a Court Commissioner for measuring the land of both the parties at the same time to see whether either of the parties have encroached upon the land of the other. The first appellate Court observed that in both the measurements, which were previously carried out, the possession of the petitioners was not shown and they were also not shown as adjacent cultivators. Though it was the case of the plaintiffs that the petitioners had made encroachment over the way, which was towards the South of their lands, the said way was also not measured by the two measurers. In such circumstances, in order to elucidate the matter in dispute and to throw light on the controversy involved in the case of encroachment, the first appellate Court rightly allowed the application filed by the plaintiffs for appointment of Court Commissioner to measure the land of the plaintiffs and the defendants including the land of Shivdand. Since it was the case of encroachment, the order passed by the first appellate Court on 26.11.2010 cannot be faulted with. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE