1 W.P.5374.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5374 OF 2011 Digamber S/o Govindrao Baile Age : 75 Years, Occup.: Agril and Pensioner R/o Malwati, at present Hattenagar, Room No.2, Latur, Tq. And District Latur. ...PETITIONER. VERSUS The Collector, Latur and others ...RESPONDENTS. ... Shri. V.D.Gunale,Advocate for Petitioner Shri. K.B.Choudhari, A.G.P. for Respondent. ... CORAM: S.V.GANGAPURWALA, J. DATE : 22ND JULY, 2011. PER COURT : 1. The petitioner is original plaintiff, who had filed a suit for declaration regarding ownership, partition and for injunction. During the pendency of the suit, the petitioner filed an application purportedly under order 26 Rule 9 of the Code of Civil Procedure for appointment of Court Commissioner to visit site of the land and to bring on record the fact that land is not cultivated and there are shrubs and trees growing on the said land. The said 2 W.P.5374.11 application is rejected. Being aggrieved thereby present petition is filed. 2. Mr. Gunale, learned counsel for the petitioner submits that trial Court on the wrong presumption that petitioner wanted to collect the evidence regrading possession, rejected the application. In fact, the application was not filed to show possession of the petitioner, but was filed to view the position of the site i.e. whether it is uncultivated and barren, that would not amount to collection of evidence. The entries appear to be in favour of the respondents about cultivation and the Court Commissioner shall assist the Court by bringing on record the exact position on the site. 3. The learned counsel in support of his submission placed reliance on the judgment of the learned Single Judge of this Court in the case of Kolhapuri Bandu Lakade Vs. Yallappa Chinappa Lakade reported in 2011(3) Mh.L.J. 348. 4. The Proposition laid down in the judgment in the case of Kolhapuri Bandu Lakade, referred supra that to find if there is encroachment of the defendant on plaintiff’s survey number appointment of Court Commissioner would provide assistance to the Court need not be dilated, 3 W.P.5374.11 same is settled position. In the present case, the rival contentions between the parties is regarding possession of the property. The petitioner disputed the cultivation on the land and states that the land is barren and not in cultivation since 2000, so shrubs and trees are growing on the land. The petitioner seeks to bring on record the state of facts, the petitioner can prove these facts by independent evidence. The learned trial Court has properly appreciated the facts while rejecting the application. In the result, writ petition is dismissed with no order as to costs. Sd/- [ S.V. GANGAPURWALA, J. ] MTK