1 wp 5247.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5247 OF 2011 Sau. Jyoti W/o Anil Ursal, Age : 64 Years, Occu. : Household, R/o N-11, E-36/4, Mayur Nagar, HUDCO, Aurangabad. .. Petitioner Versus 1. Sayyad Akbar S/o Sayyad Kasam, Age : 40 Years, Occu. : Business, R/o Indiranagar, Mukumdwadi, Aurangabad. 2. Narayan S/o Tilokchand Kuche, Age : 40 Years, Occu. : Corporator, R/o Galli No. 12, Behind Municipal Hospital, Ambikanagar, Mukundwadi, Aurangabad. 3. Sunil S/o Devidas Jagtap, Age : 35 Years, Occu. : Business, R/o Jagatapwada, Near Vithal Mandir, Mukundwadi, Aurangabad. 4. Ramchandra S/o Saluba Narote, Age : 34 Years, Occu. : Business, R/o Galli No. 4, Ambikanagar, Mukundwadi, Aurangabad. 2 wp 5247.11 5. Municipal Corporation, Aurangabad, Through its Commissioner, A. M. C., Aurangabad. FORMAL PARTIES 6. Ismailkha S/o Sandukha, Age : 40 Years, Occu. : Business, R/o Kiradpura, Aurangabad, Tq. & Dist. Aurangabad. 7. Isaqkha S/o Sandukha, Age : 40 Years, Occu. : Business, R/o As above. 8. Maqbool Kha S/o Sandukha, Age : 38 Years, Occu. : Business, R/o As above. 9. Rahimkha S/o Sandukha Age : 36 Years, Occu. : Business, R/o As above. 10. Gafoorkha S/o Sandukha, Age : 34 Years, Occu. : Business, R/o As above. 11. Habibkha S/o Sandukha, Age : 20 Years, Occu. : Business, R/o As above. 12. Nasimkha S/o Sandukha, Age : 55 Years, Occu. : Household, 3 wp 5247.11 R/o As above. 13. Bismillabee W/o Saundukha, Age : 45 Years, Occu. : Household, R/o As above. 14. Akbarkha S/o Sandukha, Age : 25 Years, Occu. : Business, R/o As above. .. Respondents Shri R. R. Sancheti, Advocate h/f Shri R. R. Mantri, Advocate for the Petitioner. Shri S. V. Adwant, Advocate for Respondent Nos. 1 and 2. The respondent Nos. 3 to 5 are served. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH NOVEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of the petitioner and respondent Nos. 1 and 2 taken up for final hearing. 2. The petitioner along with respondent Nos. 6 to 14 is the original plaintiff who has filed a suit for injunction restraining the respondents from disturbing her possession. The contention of the petitioner is that the suit property is part of Sy. No. 91. 4 wp 5247.11 3. The defendant Nos. 1 to 4 appeared and contended that the suit property is part of Sy. No. 1, which was gairan land and is owned by the CIDCO. There were rival contentions in this regard. The present petitioner filed an application for appointment of T. I. L. R. as Court Commissioner U/Sec. 75 read with Order 26 Rule 9 of the Code of Civil Procedure. The said application is rejected. Aggrieved thereby the present petition is filed. 4. Shri Sancheti, the learned counsel for the petitioner submits that there is dispute regarding identity of the subject matter and the same can be resolved by appointment of T. I. L. R. who would measure the land. The same would assist the Court in coming to a just conclusion. The learned counsel relies on the judgment of the Apex Court in a case of Haryana Waqf Board Vs. Shanti Sarup and others reported in 2008 (8) SCC 671. 5. Shri Adwant, the learned counsel for respondent Nos. 1 and 2 opposes the petition and submits that even accepting the case of the plaintiff as it is, it no where transpires that the suit property is part of Sy. No. 91, nor any such documents are placed on record substantiating their case. The learned counsel further 5 wp 5247.11 contends that said Sy. No. 91 is acquired. According to the learned counsel no purpose would be served by appointment of T. I. L. R. The Trial Court has properly considered all these aspects and has rightly come to the conclusion. 6. With the assistance of learned counsel I have gone through the pleadings, application and the order impugned. The learned Judge has observed that the parties have not yet argued on the application for temporary injunction, but while rejecting the application has not dilated on the aspect regarding whether the assistance of the T. I. L. R. is necessary for the effective adjudication of the dispute or not. 7. Whenever the dispute is regarding identity of the suit property as in the present case, in such circumstances the appointment of T. I. L. R. to measure the property and to submit his report would always be desirable. Even the Apex Court in a case of Haryana Waqf Board referred supra has held that when the dispute is in respect of encroachment of the suit land, in such circumstances, the demarcation can be done by the local commissioner. In the present case also it seems that dispute is regarding identity of the suit property in as much as the plaintiff 6 wp 5247.11 contends the same to be part of Sy. No. 91 and the defendants contend the same is to be part of Sy. No. 1. The report of the T. I. L. R. would assist the Court in arriving at just conclusion. 8. In the light of the above, the impugned order is quashed and set aside. The application Exhibit 45 is allowed. The Trial Court shall appoint the T. I. L. R. as a Court Commissioner to measure the suit property and to submit his report qua the dispute between the parties. The charges for appointment of Court Commissioner shall be borne by the plaintiff. The said exercise shall be done by the Trial Court expeditiously. Rule is accordingly made absolute in above terms, however, with no order as to costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Nov. 11