1 wp 3960.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3960 OF 2011 Gorakhnath Atmaram Kumkar and another .. Petitioners Versus Sanjay Bhagwan Gulve .. Respondent Shri L. V. Sangit, Advocate for the Petitioner. Shri A. S. Osmanpurkar, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 08TH SEPTEMBER, 2011. PER COURT : . The petitioners are the original defendants. The respondent has filed suit for injunction in respect of 18R land in gat No. 141 as per the boundaries stated in the plaint. During the pendency of the suit the petitioners applied for appointment of Court Commissioner thereby to inspect the site and to draw the map regarding the location so also to measure the same. The said order is assailed in the present writ petition. 2 wp 3960.11 2. Shri Sangit, the learned counsel for petitioners submits that the suit is for simplicitor injunction. The petitioner No. 1 has purchased 27R land from the petitioner No. 2 and is in possession of the same as per the boundaries stated in the sale deed. The learned counsel contends that the Court Commissioner cannot be appointed for collecting the evidence. The suit is not for possession or removal of encroachment. It is for the plaintiff to prove his possession over the area which he claims. He cannot take assistance of the commission to prove his case. According to the learned counsel there was no propriety for the trial Court to appoint the Commissioner. 3. Shri Osmanpurkar, the learned counsel for the respondent supports the order and submits that the Commissioner has been properly appointed. There is dispute regarding the boundaries. In case there is dispute about the boundaries and location of property, T. I. L. R. would be proper person to measure the land and to give the exact position. 4. The plaintiff in the plaint has given the boundaries which he claims to be in possession of the said 18R land. In the written statement the boundaries are not given by the defendants, but he 3 wp 3960.11 is in possession as per the boundaries stated in the sale deed. It appears that both the parties are claiming possession of the respective area and the boundaries over lap. The T. I. L. R. would be an independent person who would measure the land and after Commission place on record the exact position. The Court has appointed the T. I. L. R. specifically directing him to measure the said gat No. 141 i. e. 18R land of plaintiff, 27R land of the defendant No. 2, 2H land allotted by son of defendant No. 2 by way of sale deed. 1H land in the name of Umesh son of defendant No. 2 and 54R land in the name of Sarswati, Raju, Baban Mouje Rajur, Tq. Bhokardan and to investigate the spot, location and boundaries and submit the report with map. To appoint Court Commissioner is discretion of the Trial Court and the Trial Court has exercised the discretion. In view of the fact that the same would elucidate the matter in dispute. The said discretion as exercised is plausible one and same need not to be interfered with in the writ petition by this Court. The writ petition is dismissed with no oder as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11