1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9256 OF 2009 New Shri Swami Samartha Boriwade Village C.H.S. Ltd......... Petitioner versus Ganpat Gopal Gawali & anr. ........Respondent. Mr. V.A. Thorat Sr. counsel with Vaibhai Sugdare i/b. Mahimtura & Co. adv. for the Petitioner Mr. Mandar Patil i/b. Ms. Sharmila Deshmukh adv. for the Respondent. CORAM: A. P DESHPANDE, J. DATED : 13th November, 2009. P. C.: 1. This petition is directed against an order dated 17-9-2009 passed by 10th Joint Civil Judge, Junior Division, Thane allowing the application filed by the present respondent/plaintiff for appointment of a Court Commissioner for the purpose of verification of the physical features. The plaintiff has moved an application for temporary injunction in the pending suit wherein the plaintiff averred that the suit land is under paddy cultivation. It is also averred that the plaintiff has construcdted a mud house on the suit land. These averments are made with a view to demonstrate the plaintiff’s possession over the suit land. The 2 present petitioner/defendant denied the fact that the land in question is a paddy land and asserted that it is a barren land. The petitioner also denied that there exists a mud house on the suit land. With a view to substantiate the existence of mud house the plaintiff placed on record photographs which also came to be disputed by the defendants. Hence the plaintiff was constrained to apply for appointment of Court Commissioner. The trial court has recorded a correct finding that with a view to prove factum of possession, machinery of court cannot be used by the parties and hence appointment of Court Commissioner to determine posse- ssion is not permissible. However, as the petitioner/defendant has disputed the very existence of mud house, over the suit property the trial court was constrained to allow the application and appoint Court Commissioner. The learned Sr. counsel appearing for the petitioner in all fairness admits the existence of mud house on the suit property and thus submits that in view of this admission, now there is no need for the Commissioner to visit the suit site. The learned counsel for the respondent/plaintiff in the same spirit does not insist for appointment of Court Commi- ssioner in view of admission of the existence of mud house. In that view of the matter on concession made available by the respective parties, the order passed by the trial court for appoint- ment of court Commissioner stands set aside. The trial court shall proceed to decide the temporary injunction application on its own merit in accordance with the law after taking into consideration the admission and concession made available by the learned 3 Senior counsel for the petitioner about existence of mud house. Writ petition thus stands disposed of. (A. P. Deshpande, J.)