1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8289/2009. Ramabai Ambedkar Shikshan Prasarak Mandal, Parbhnai, through its Secretary. - PETITIONER VERSUS 1) Dr.Subhash s/o Ramrao Rathod and others. - RESPONDENTS ***** Mr.AL Tikle, Advocate for Petitioner; Mr.PL Kalani, Adv. for Resp.Nos.2 to 5. ----- CORAM : K.U.CHANDIWAL,J. DATE : 7th October,2010. PER COURT/ORAL JUDGMENT : 1) Heard the learned Counsel for the parties. 2) Regular Civil Suit No.4/2004 was decreed. It was challenged by Regular Civil Appeal No.56/2007 before the Ad hoc District Judge-1, Parbhani. At the time of hearing of the appeal, by virtue of an application, the learned Judge directed appointment of T.I.L.R. as 2 Commissioner with specified dates and duties to the said Commissioner, as indicated in the order, which reads as under : "1. Application Ex.14 is allowed. 2. The Taluka Inspector of Land Records, Parbhani is appointed as Commissioner at the costs of appellant under Order XXVI Rule 9 of the Code of Civil Procedure. 3. The TILR shall visit the suit site and furnish a map showing structures and buildings existing, if any, along with dimensions, area and four boundaries over the suit site. 4. The appellants shall deposit the Commissioner fee as per Rules.” 3) The learned Counsel for the petitioner questions the same on the ground that though rights are vested with the learned Judge in terms of Order 41 Rule 27 CPC, however, due satisfaction of the leaned Appellate court is paramount to be surfaced. Secondly, even if the Cadestral Surveyor has caused measurement, if this court comes to conclusion that the appointment of the local Commissioner in terms of Order 26 Rule 9 of CPC was itself uncalled for, report of such Cadestral Surveyor will be a scrap paper and naturally the Court should not entertain the same. 3 4) The submission of learned Counsel for the petitioner is supported by order in WP No. 488/2008 and WP No.4947/2008 decided on 7th October, 2008. There cannot be controversy to the views expressed by both the learned Single Judges in their respective orders in the Writ Petitions. With all said and done, the factual matrix in the present matter warrants some requirement, which is more clearly indicated in paragraph 14 of the order of the learned Judge dated 6.10.2007, it is quoted herein below :- "14. As evident from map Ex.108 the TILR, Parbhani had already inspected the disputed site. However, in that map Ex.108 it has not been specified as to whether the structure and buildings as alleged by the parties are existing or otherwise. Therefore, in order to have a clear picture of the situation and the locations on the suit site, it is found just, proper and desirable to appoint the TILR as Court commissioner with a direction to him to specify as to whether any structure and buildings are actually existing on the suit site, if so, then to specify the dimension and area of those buildings and structures along with four boundaries of the same. With this observation point no.1 is answered in affirmative.” 5) Reading the above observations of the learned District Judge, it is apparent, there was already an order on Exhibit-108 and the T.I.L.R., 4 Parbhani did not specifically point the existing structure and since this anomaly was to be cured, the learned Judge held that it should have been called and consequently, the orders, subject of challenge, were passed. 6) The learned Judge, it is apparent, did not desire to create new evidence. He wanted to cure the defect, as Exhibit-108 was silent to certain specifications. The other aspect about not accepting T.I.L.R's report, need not be coined, since this court has accepted the nature of the order warranting the learned Judge to exercise the same in terms of Order 41 Rule 27 of CPC. 7) Learned Counsel for respondent informs that the order dated 6.10.2007 is indeed complied as the learned Commissioner/T.I.L.R has caused measurement, report of which is tendered before the competent forum on 9.1.2009 and writ petition is filed on 23.11.2009. Since the report is disputed by the petitioner, an application to examine the T.I.L.R. was moved, it has also been entertained by the learned Additional District Judge. 8) Taking survey of above aspects, I do not see any illegality on the part of learned Ad hoc 5 Additional District Judge, Parbhani, by recording the order dated 6.10.2007 in RCA No. 56/2007. 9) In the result, Writ Petition dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/