FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS WP/2748/2011 ASHOK V/S JAYCHAND ... 1. Heard Shri Gunale, learned Advocate for petitioner. 2. The suit filed by the petitioner / plaintiff is for declaration and injunction. It is on the basis of the measurement under Section 85(2) of the Maharashtra Land Revenue Code. The Cadastral Surveyor, who had done that measurement, gave some wrong answers in the cross examination. Because of those wrong answers, the petitioner moved an application under Order XXVI Rule 9 of CPC seeking appointment of the Commissioner and trial Court has by the impugned order, rejected that prayer. 3. Shri Gunale, learned Advocate contends that the measurement by Cadastral Surveyor is the foundation of suit and as the foundation itself has gone weak, for no fault on the part of the petitioner, the appointment of Commissioner ought to have been ordered. He relied upon the judgment in the case of Vijay Shrawan Shende Vs. State of Maharashtra [Mh.L.J.2009 (5) 279], more particularly paragraph No.38. 4. With the assistance of the learned counsel, I have perused the reported judgment and noticed that it has been delivered in Second Appeal, where, one of the questions was in relation to the encroachment. It is in this background, the Court has found that such a suit for removal of encroachment cannot be allowed to be dismissed on account of technical errors by expert like Cadastral Surveyor. That is not the position in the matter at hand. 5. The trial Court has noted the rival contentions and then found that the facts only reveal giving of certain admissions in the cross examination by the Cadastral Surveyor FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s Orders. COURT’S OR JUDGE’S ORDERS (2) WP/2748/2011 and it cannot be said that the whole measurement was defective. Prima facie it has also recorded a finding that the procedure prescribed for such measurement was followed. It has also given one more reason, that there is design of the petitioner / plaintiff to re-start the litigation. 6. I see no jurisdictional error or perversity in the impugned order. I am not inclined to interfere in the matter at this stage. With liberty to the petitioner to challenge the impugned order of the trial Court after the suit is finally decided, present Writ Petition is disposed of. No order as to costs. Dt.29.4.2011 (B.P.DHARMADHIKARI,J.) akl