1 wp-9433.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9433 OF 2011 Shri Bhupal Krushna Dhole : Petitioner versus Shri Laxman Narsappa Kumbhar : Respondent. Mr. P S Bhavake for the Petitioner. CORAM : R M SAVANT, J. DATE : 14th December 2011 P.C. 1 The above Petition takes exception to the order dated 23/8/2011 passed by the learned Joint Civil Judge, Junior Division, Kagal by which order the Application for appointment of a Court Commissioner came to be rejected. 2 The dispute is in respect of a strip of 8 sq.mtrs strip of land. The case of the Petitioner/Plaintiff is that the Defendant is encroaching upon the said strip of land by putting up construction. The suit was filed for seeking injunction against the Defendant. The application for temporary injunction was allowed by order dated 20/1/2009 and the Defendant was restrained from carrying out any construction over the 8 sq.mtrs strip of land or disturb the possession of the Petitioner/Plaintiff. The instant Application for appointment of Court Commissioner was filed on 24/6/2009. The Defendant has filed his reply on 5/8/2009. The Plaintiff has filed his affidavit in support of the Application on 6/7/2010. The trial Court has rejected the said application on the ground that it is for the Plaintiff to prove his title over the said 8 sq.mtrs 2 wp-9433.11.sxw strip of land, as also on the ground that since the Defendant has applied to the Municipal Council with a new plan excluding the 8 sq.mtrs strip of land from construction, there was no warrant to appoint a Court Commissioner as the Court Commissioner could be appointed only for the purpose of elucidating the matter in dispute. The trial Court has observed that in view of the well settled position that the commissioner cannot be appointed for collection of evidence, has rejected the said application by the impugned order. 3 The learned counsel for the Petitioner would contend that though in the new plan submitted by the Defendant, he has purportedly left the 8 sq.mtrs strip of land aside, however, the construction has already been carried out prior to sanction of the new plan, and therefore, appointment of the Court Commissioner is necessary. The learned counsel has relied upon the judgment of a learned Single Judge of this Court reported in 2011(3) Bom C R 807 in the matter of Kolhapure Bandu Lakade v/s. Yallappa Chinappa Lakade Decd. Thru. Pooja @ Poojari Y Lakade and ors. In so far as the said judgment is concerned, the learned Single of this Court, relying upon a judgment of the Apex Court, has held that when there is a dispute about demarcation of lands it is appropriate to direct investigations by a Court Commissioner under Order 26 Rule 9 which would be necessary for a just decision of the case. In the instant case, as can be seen from the facts stated herein above, that the instant application for appointment of Court Commissioner was filed in June 2009, and was not pressed for a considerable 3 wp-9433.11.sxw time. The interim injunction granted in favour of the Plaintiff has been granted in January 2009, and hence if there was any apprehension or urgency in the matter, the Petitioner/Plaintiff would have moved the application for appointment of Court Commissioner which he had filed in June 2009.. However, the said application was kept pending which has now been decided by the impugned order dated 23/8/2011. 4 In so far as appointment of Court Commissioner is concerned, admittedly, the Defendant has submitted a new plan where he has allegedly kept 8 sq.mtrs strip of land aside. If the Defendant has constructed in violation of the sanctioned plan it is for the Petitioner/Plaintiff to take up the issue with the Municipal Authorities. However, since the Defendant has submitted a new plan leaving 8 sq.mtrs strip of land aside, the trial Court was right in rejecting the said application for appointment of Court Commissioner. 5 In my view, no exception could be taken to the impugned order. It would be for the Petitioner/Plaintiff to prove by cogent evidence that the Defendant has in fact encroached upon his land. In that view of the matter, no case for interference is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]