1 WP-2154-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 2154 OF 2010 1. Suhas Laxman Kanhere, ) Age 49 years, Occupation - Engineer ) and Valuer, R/o. 531 B Camp, Sawali ) Bungalow Satara. ).. Petitioner (Orig.Plaintiff) versus 1. Shrimant Chatrapati Udayanraje ) Pratapsinh Maharaj Bhosale ) Age 45 years, Occu - social work ) And Agri. R/o. "Jalmandir" Shukrawar) Peth, Satara - 415002. ) 2. Shri Popat Shankar Pawar, ) Age 55 years, Occu: Agri. ) R/o. Bharatgaon wadi, Tal. and ) Dist. Satara. ) 2 WP-2154-10.sxw 3. The Collector, Satara. ) 4. The Project Director, ) National Highway Authority, ) Bharatkunj Vasahat No.1, ) Ganesh Nagar, Erandwana, ) Pune 411 038. )..Respondents (Ori.Defendants) Mr. G.S.Godbole i'b. Shri Ashok B.Tajane, Advocates, for the petitioner Mr. Amit Borkar,Advocate for the respondent No.2. CORAM: J.H.BHATIA,J. DATE : 21st September, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2. The present petitioner is the original plaintiff. He had filed Regular Civil Suit No.517/1995 for perpetual injunction restraining the defendants from causing any interference in his possession over the suit property, being a piece of 3 WP-2154-10.sxw land admeasuring 100' x 60' which is a part of Survey No.322/1. The plaintiff had taken this land on lease from defendant No.1 for carrying on business. According to him, defendant No.1 had prepared a layout which is not yet sanctioned. Out of the said layout, defendant No.2 claims to have purchased plot Nos. 3 and 8 from the defendant No.1. On 20.9.2008, the plaintiff filed an application Ex.370 for measurement of the plot taken by him on lease by the Taluka Inspector of Land Records (TILR) to show that the defendant No.2 had dug some ditches and had started making construction on the plot in possession of the plaintiff. That application was opposed by the defendant No.2 on the ground that he had purchased the said plots on 18.6.1996 and 17.8.96 stating that in 1996, after the defendant No.1 had purchased the plots, the plaintiff had got Commissioner appointed for inspection of the property on three occasions and when the evidence of both the parties was already closed in the year 2006 and was at the fag end of disposal, he moved this application. According to him, earlier application filed in 2007 to appoint TILR as Court Commissioner for same purpose was rejected and therefore this submitted an application on the same ground could not be allowed. After hearing the parties , the trial Court rejected the said application. 3. The record reveals that on 14.2.1998, the plaintiff had moved an 4 WP-2154-10.sxw application for appointment of Court Commissioner to bring out clear picture of construction being carried out on the spot. The Court Commissioner was appointed and he has also submitted a report Exhibit 61 along with the map. On 13.6.2003, the plaintiff moved another application Ex.226 for appointment of the Court Commissioner. That application was allowed. The Advocate K.K.Shah was appointed as Court Commissioner, again to show the exact status of the construction going on the plot. The court Commissioner submitted a report with the map. Again in 2007, the plaintiff moved an application Ex.331 for appointment of Court Commissioner to verify whether there was stall or hotel on the land of the plaintiff. That application was also allowed on 15.6.2007 and Advocate K.K.Shah was appointed as Court Commissioner. He submitted a report. In the year 2007, the evidence of both parties was closed. He thereafter made an application for amendment seeking removal of the construction made by the defendant No.2 on the plot in possession of the plaintiff. After that amendment,he filed an application Ex.370 for measurement of his plot by the TILR. That application was opposed. The trial court recorded the above facts in the impugned order and noted that on three occasions Advocate K.K.Shah was appointed Court Commissioner to see the construction or shed or hotel, etc. on this land and after the evidence of both the parties was closed, the plaintiff moved this application. According to the trial Court, the plaintiff was simply trying to prolong the matter. 5 WP-2154-10.sxw There appears to be substance in this observation of the trial court. However, the fact remains that the trial court had allowed the amendment in the plaint in the year 2008 for the purpose of removal of the construction made by the defendant No.2 on the plot of the plaintiff. To prove that, the said construction was on his plot, it was necessary that the measurement of the plot should be undertaken. Without measurement of that plot, it would be impossible to establish that the construction made or the structures raised by the defendant No.2 were on the plot in possession of the plaintiff as a lessee. Therefore, the appointment of TILR as Court Commissioner for measurement of the plot was necessary. In my considered opinion, in view of these circumstances, the trial court should have granted the application subject to heavy costs to be paid by the the plaintiff for the delaying tactics. 4. Therefore, in the interest of justice, the petition is allowed subject to payment of cost of Rs.10,000/- by the petitioner to the respondent No.2 and the impugned order is set aside. The trial Court shall appoint Taluka Inspector of Land Records as Court Commissioner to measure the plot in possession of the plaintiff as a lessee and to find out whether the defendants had made any encroachment or construction on the said plot. The cost of the Commissioner shall be borne by the plaintiff. The cost be deposited with the trial Court within 6 WP-2154-10.sxw three weeks from this day. The defendant No.2 shall be allowed to withdraw the same . If cost is not deposited,this petition shall be deemed to have been dismissed. Rule made absolute accordingly. 5. Parties to act on an authenticated copy of this Order. (J.H.BHATIA,J.)