1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10776 OF 2010 Mohd. Iliyas s/o Mohd. Bhai ...Petitioner Versus Iqbal Baig s/o Niyaj Baig ...Respondent ..... Mr. Amit A. Mukhedkar, advocate for the petitioner ..... CORAM: S. S. SHINDE, J. DATED: 25TH NOVEMBER, 2010 PER COURT:- 1 Heard counsel for the petitioner. This petition is filed challenging the impugned order dated 21.10.2010 passed below Exh. 65 in Special Civil Suit No. 81 of 2007, passed by the 2nd Joint C.J.S.D. Parbhani, thereby rejecting the application of the petitioner for appointment of Court Commissioner for measurement of the suit property. Counsel for the petitioner submits that since in the agreement itself it is mentioned that the area of the suit property is 20x14 ft. approximately. Taking undue advantage of the word ‘approximately’ averments in the agreement, the defendant has taken a stand before the trial court that the area of the suit property is 24x14 ft. Therefore, learned counsel would submit that unless measurement 2 of the suit shop is carried out, the court will not be in a position to pass appropriate order. Counsel for the petitioner invited my attention to the grounds taken in the petition and an reported judgment of this Court in the case of Omprakash Gulabchand Bajoria Vs. Ramesh Ramnivas Soni and others, in Second Appeal No.116 of 1988 (Nagpur Bench) and relying on the said judgment, the counsel would submit that in some what similar facts this court has taken a view that in such case it is necessary to appoint Court Commissioner for measurement of the suit property so as to arrive at the proper conclusion. Counsel for the petitioner at the cost of repeatation submitted that the concerned court will not be able to draw the decree and therefore, the measurement of the suit property is necessary. 2 I have given due consideration to the submissions advanced by the counsel for the petitioner. I have also perused para 3 of the impugned order. The trial court has considered the contents of the agreement that the area of the suit shop is 20x14 ft. The Court has observed that on the basis of the said contentions necessary issues were framed, evidence has been led by both the parties though the defendant has pleaded and tried to defend by claiming that suit property is admeasuring 24x14 ft. however, it will not affect pleading as well as contents of the agreement of sale at Exh.26. The Court further observed that after closing their respective evidence by the parties, suit is riped for final arguments and in such circumstances, the 3 trial court has rejected the application of the petitioner for measurement of the suit shop. 3 On independent scrutiny, I do not find that the view taken by the trial court is not possible view. It is not in dispute that area of the suit shop, mentioned in the agreement is 20x14 approximately. The issues are framed, evidence is led by the parties and now the matter is posted for final arguments. The trial court was justified in rejecting the application for appointment of Court Commissioner. The judgment cited by the counsel for the petitioner in the case of Omprakash Gulabchand Bajoria (supra) is not applicable in the facts of this case. In that case, the court was dealing with issue of encroachment. Therefore, no case is made out. The trial court has taken possible view. Writ petition therefore, stands dismissed. ( S. S. SHINDE. J.) rlj/