wp10777.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 10777 OF 2010 Shankar Narhari Pund ...Petitioner Versus Lahanu Rama Pund and another ...Respondents ..... Mr. Niteen V. Gaware, advocate for the petitioner ..... CORAM: S. S. SHINDE, J. DATED: 2ND DECEMBER, 2010 PER COURT:- 1 This petition takes exception to the order dated 19.11.2010 passed by the learned 4th Joint C.J.J.D. Ahmednagar below Exh.80 in R.C.S. No. 43 of 2007. 2 The petitioner herein filed an application before the trial court praying therein for appointment of Court Commissioner for conducting the nimtana measurement. Counsel for the petitioner submits that while carrying out the measurement, no measurement was carried out in respect of both Gat numbers. There is difference in the report of two surveyors. The procedure, as prescribed, is not followed while carrying out the earlier wp10777.10 2 measurement. Learned counsel further submits that in order to ascertain the boundaries of the suit property and to put the end to the controversy, it was necessary to appoint another court Commissioner for nimtana measurement. Counsel further invited my attention to the pleadings in the petition, grounds taken therein and submitted that even the witnesses have stated that such measurement is necessary. In spite of that the trial court has rejected the application for nimtana measurement. In support of his contention, learned counsel has placed reliance on the reported judgments of this Court in the cases of Niranjanabai Chandrakant Vira Vs. Pramilabai Balkrishna Zade and another, reported in 2004 (6) Bom. C.R. 829, Head Note “A”and “B” and Omprakash Gulabchand Bajoria Vs. Ramesh Ramnivas Soni and others, reported in 2003 (Supp.2) Bom. C.R. 294, and submitted that if no definite report is given in such cases proper way was to have survey of the plot by City Surveyor for taking joint measurements which was essential to ascertain the correct factual position. Learned counsel, therefore, would submit that this writ petition deserves to be allowed. 3 I have given due consideration to the submissions advanced by the counsel for the petitioner. I have perused the pleadings in the petition, grounds taken therein and the annexures thereto. I have also perused the reasonings given in the impugned order passed by the trial court. I find that the court has taken into consideration the fact that the application of the defendant for appointment of the Court wp10777.10 3 Commissioner was allowed by order dated 4.6.2007. The T.I.L.R. was appointed as Court Commissioner specifically about the stream passes through the landed property of both parties. Accordingly, T.I.L.R. Filed his report at Exh.52. Moreover, court Commissioner has been examined by the plaintiff at Exh.51 during the trial. The defendant has also examined the witnesses who are concerned to the Office of T.I.L.R. and Survey Office at Exh.61, 70 and76. These witnesses have been examined to bring on record geographical situation and total area of Gat No.551 and 552. These witnesses have filed map of the suit property. Taking into consideration the above circumstances, the trial court held that such application is filed with intention for delaying the hearing of the suit. The trial court has observed that due examination of four witnesses by both parties, situation of Gat No. 551 and 552 has already came on record and hence the appointment of Court Commissioner is not necessary. 4 Upon independent scrutiny, I find that no case is made out to take different view in the matter than taken by the trial court. T.I.L.R. was already appointed. Application of the defendant was already allowed. Not only this the T.I.L.R. appointed a surveyor, who carried out the measurement, and the said surveyor has been examined by both the parties, Therefore, in my opinion, the findings recorded by the trail court are on the basis of the material on record. The trial court has wp10777.10 4 taken possible view. Even if it is assumed that the another view is possible, that is not a ground to interfere by invoking extra ordinary writ jurisdiction under Article 227 of the Constitution. The Hon’ble Supreme Court time and again held that if possible view is taken by the authorities or the Courts below, merely because another view is possible is no ground to interfere under extra ordinary writ jurisdiction under Article 227 of the Constitution. 5 It is not in dispute that recording of evidence is complete and the matter is posted for final arguments. Therefore, in my opinion, no case is made out for interference. So far as the reliance placed by the counsel on the reported judgments is concerned, in my opinion, the same is misplaced in the facts of this Case. Since the matter is posted for final hearing, at this stage, no interference is warranted and any interference would only cause hardship to the parties and would not serve the interest of justice. Therefore, writ petition devoid of any merits and the same stands dismissed. ( S. S. SHINDE. J.) rlj/