spb/- 1 wp2447-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 2447 OF 2011 Shri Vasant Bhagwan Yadav & Others. ... Petitioners. V/s. Chandrakant Shankar Yadav & Ors. ... Respondents. ­­­­­ Mr. A.S.Khandeparkar i/by Khandeparkar & Associate for the Petitioners. Mr. M.J. Bhatt for Respondent No.1. ­­­­­ CORAM : D. G. KARNIK, J. DATE : 29th JUNE, 2011. P.C. : 1 Rule. 2 Mr. M.J.Bhatt, Advocate, waives service of Rule on respondent no.1. Service of Rule on respondent nos. 2 to 18 is dispensed with since they are formal parties inasmuch as they are co­defendants alongwith the petitioners and an order of appointment of Commissioner was passed at the application of the respondent no.1 which was not opposed by the respondent nos. 2 to 18. 3 The respondent no.1, original plaintiff, made an application for appointment of a Court Commissioner, which was allowed. Learned spb/- 2 wp2447-11.sxw counsel for the petitioners (defendant nos. 1 to 9) submits that the Court Commissioner cannot be appointed to collect the evidence and cannot decide who is in possession and hence, the Court ought not have appointed the Court Commissioner for the purpose of determining the possession of the property. 4 Counsel for the respondent no.1 conceded that the Court Commissioner cannot be appointed for determining who was in possession of the property. He, however, submits that the Court Commissioner can certainly be appointed for the purpose of local inspection of the property and to note existence of the structures, trees, compounds, wells, water tanks and pipeline etc.. 5 Perusal of the application for appointment of the Court Commissioner shows that the respondent no.1 sought appointment of a Court Commissioner for the purpose of local inspection of the property to note existence of various houses, structures, compounds and courtyard, well, water­pump and storage tank. Of course in the application he had also contended that the houses were in his possession. Save and except for determination of an issue as to who is in possession of the houses, the Court Commissioner, in my view, can be appointed for local inspection spb/- 3 wp2447-11.sxw of the property to bring on record the present nature of the property and to note existence of the structures, trees, wells, compounds etc. on the land. Consequently, the impugned order is required to be partially modified in sofaras it authorizes the Court Commissioner to give report regarding possession of the property. Hence, I pass following order : ORDER i. Order of the trial court, appointing the Court Commissioner is confirmed with modification that the Commissioner shall not be entitled to determine who is in possession of the property or any structure therein. ii. Rule is made absolute to the extent indicated above. [D.G. KARNIK, J.]