LPA ST No. 23606/10 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD LETTERS PATENT APPEAL ST. NO. 23606 OF 2010 IN WRIT PETITION NO. 2316 OF 2010 Gangaram Ragho Mahajan, R/o. Near Nagoba Madhi, Post & Tq. Erandol, Dist. Jalgaon and anr. ....Appellants. Versus Ramchandra Narayan Mali, R/o. Maliwade, Erandol, Tq. Erandol, Dist. Jalgaon & others ....Respondents. Mr. U.S. Malte, Advocate for appellants. Mr. Pushkar Shendurikar, Advocate for respondents. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 21st September, 2011. ORDER : [ PER T. V. NALAWADE, J. ] 1. The appeal is filed against the order made by the learned Single Judge of this Court in Writ Petition No. 2316/2010. The Writ Petition was filed by present appellants to challenge the order made on Exh. 32 in Regular Civil Suit No. 1/2008 by Civil Judge, Junior Division, Erandol, Dist. Jalgaon. The application filed by LPA ST No. 23606/10 2 appellants/plaintiffs for appointment of Court Commissioner is rejected by the Trial Court. The learned Single Judge of this Court has rejected the writ petition by observing that the evidence of Cadastral Surveyor, who has already measured the land, needs to be recorded first and after that the plaintiffs may renew the request by tendering application to the Trial Court for another measurement. 2. The plaintiffs are owners of Gat Nos. 1082/2 and 1082/3 situated at Tahsil Erandol, District Jalgaon. On southern side of Gat Nos. 1082/2 and 1082/3, there is Gat No. 1082/4 owned by defendant Nos. 5 to 9 and on northern side of Gat Nos. 1082/2 and 1082/3, there is Gat No. 1082/1 owned by defendant Nos. 1 to 4. Before filing the suit the plaintiffs got measured the entire Gat No. 1082 to ascertain the encroachment and on the basis of measurement made by the Cadastral Surveyor, the suit came to be filed for relief of possession of encroached portion. 3. In the application at Exh. 32 plaintiffs prayed for appointment of Court Commissioner to again make the measurement as per the ownership and possession through Cadastral Surveyor of Tahsil Office. This application came to be opposed. The Trial Court rejected the application by observing LPA ST No. 23606/10 3 that in view of measurement already done by Taluka Inspector of Land Records (TILR), on the basis of the evidence of TILR, plaintiffs may be able to prove the case. The learned Single Judge has observed that after leading the evidence, if the plaintiffs' deem it necessary, they may renew the request by tendering the application to the Trial Court and the Trial Court may on consideration of all the relevant circumstances decide such application. 4. In this proceeding it was submitted for the appellants that in measurement map supplied by the Cadastral Surveyor the actual encroachment is not marked by the Surveyor. In this proceeding a copy of reply given to appellants by Cadastral Surveyor in letter dated 28.8.2008 is produced. The Cadastral Surveyor has supplied copy of Hissa Form No. 4 dated 24.3.2007 (date of measurement). The Cadastral Surveyor has mentioned about the record prepared by him at the time of measurement and in the form he has given the particulars of the actual area in possession of owners of Hissa Nos. 1, 2, 3 and 4. 5. The appellants/plaintiffs are relying on the revenue record and it is their case that Hissa Nos. 2 and 3 admeasure 31 R. area each and Hissa No. 1 and 4 admeasure 60 R. each. In Form No. 4, LPA ST No. 23606/10 4 the Cadastral Surveyor has mentioned that owner of Hissa No. 1 was found in possession of 72 R. portion and owner of Hissa No. 4 was found in possession of 79 R. portion. In view of these circumstances, the Trial Cort has made aforesaid order. Thus, in view of the facts of the case, it is desirable that the evidence of Cadastral Surveyor, who took the measurement at the instance of the plaintiffs' needs to be recorded first. 6. For the appellants some reported cases were cited as under :- (1) AIR 2004 Karnataka 92, B.S. Nazir Hassan Khan Vs. Aswathanarayana Rao and others. (2) 2000 DGLS (Soft.) 450, Shreepat Vs. Rajendra Prasad. (3) (2008) 8 SCC 671, Haryana Waqf Board Vs. Shanti Sarup & Ors. (4) (1987) 4 SCC 71, Achuthan Nair Vs. Narayanna Nair & Anr. (5) 1994 (1) Mh.L.J. 664, Tajmulhussain Mulla Mumtaz Hussain Vs. Satish Bhanudas Chavan. (6) 2003 (4) ALL MR 1083 Kisanlal Maniklal Rathi Vs. Dinkar Yashwant Patil. (7) 2004 (6) Bom.C.R. 829, Niranjanbai Chandrakant Vira Vs. Pramilabai Balkrishna Zade & Anr. LPA ST No. 23606/10 5 (8) 2006 (Supp.) Bom.C.R. 1018, Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade (9) 2008 (3) Bom.C.R. 4, Manohar Mahadeorao Pagrut Vs. Sunanda Ramdas Tharkar. (10) 2009 (5) Mh.L.J. 279, Vijay s/o. Shrawan Shende Vs. State of Mah. & Ors. (11) 2010 (3) Bom.C.R. 373, Yeshwant Bhaduji Ghuse VS. Vithobaji Laxman Ladekar (12) 2009 B.C.I. 313, Girish Vasantrao Bhoyar & Anr. Vs. Nimbaji Warluji Bambal. 7. We have perused the judgments cited supra. In view of the facts of the present case, this Court holds that it is desirable that the request of the plaintiffs is considered only after recording the evidence of the Cadastral Surveyor, who has already done the measurement and so there is no possibility of interference in the order made by the learned Single Judge of this Court. The appeal stands dismissed. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/