1 wp-9094.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9094 OF 2011 Subhash Bandu Sutar : Petitioner versus Mohan Dharma Kamble and ors. : Respondents. Mr. D V Sutar for the Petitioner. CORAM : R M SAVANT, J. DATE : 14th November 2011 P.C. 1 The above Writ Petition takes exception to the order dated 19/7/2011 passed by the learned 2nd Joint Civil Judge, Junior Division, Ichalkaranji by which order the Application-Exhibit 34 filed for appointment of Court Commissioner by the Plaintiff i.e. the Respondent No.1 herein came to be allowed, and the T.I.L.R. Hatkanangle came to be appointed as the Court Commissioner. The Respondent No.1 who is the original Plaintiff has filed a suit for declaration and perpetual injunction against the Petitioner herein to the effect that the Petitioner should not disturb his possession of the suit property located at Gat No.659, ameasuring 47 R out of which the plaintiff has purchased 23.5 R land by way of sale deed dated 2/7/2001 from the Defendant No.8. It is the case of the Plaintiff that the Defendants who are having land on the boundaries of the suit property purchased him are seeking to encroach upon the land of the Plaintiff. In the said suit the Plaintiff filed an 2 wp-9094.11.sxw application Exhibit 34 for appointment of court commissioner so that the boundaries of the suit property vis-a-vis the land of the Defendants could be identified. The said application came to be allowed by the trial Court by the impugned order. The trial Court relied upon the judgment of the Apex Court reported in (2008) 8 SCC 671 in the matter of Haryana Waqf Board v/s. Shanti Sarup & ors, wherein the Apex Court held that wherein there is a dispute on demarcation of the land, it is for the Court to direct investigation by appointing a Local Commissioner as provided under Order 26 Rule 9 of the Code of Civil Procedure. In the instant case, since the Plaintiff apprehends that the Defendants would encroach upon or would interfere with his possession of the said land admeasuring 47 R in Gat No.649, the Court Commissioner need be appointed for demarcating the said land and place an undisputed map on record. The trial Court whilst allowing the said application by the impugned order has also taken into consideration the fact that the Plaintiff had earlier independently filed an application before the T.I.L.R. pursuant to which the T.I.L.R. proposed to carry out demarcation, but was not allowed to do so by the Defendants. 2 In my view, the reasons mentioned by the trial Court whilst allowing the said application do not merit any interference in the writ jurisdiction of this Court under Article 227 of the Constitution of India. However, in so far as the stand of the Defendants is concerned that there has been no partition of the properties in question, the fact that the Court 3 wp-9094.11.sxw Commissioner is appointed would not mean that the Plaintiff's case has been accepted and that the case of the Defendants that there is no partition has been negatived. It is for the parties to prove their respective cases by leading evidence. With the aforesaid observation, the above Writ Petition is dismissed. [R.M.SAVANT, J]