1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7785 OF 2011 Kisan Dagdu Karche ...Petitioner Versus Bhagwan Krishna Karche ...Respondent Mr.P.B.Shah for the Petitioner CORAM:- R.Y.GANOO, J. DATED:- 4th OCTOBER, 2011. P.C. 1. Heard learned Advocate Mr. Shah for the petitioner. The respondent filed Regular Civil Suit No.155 of 2008 in the Court of Civil Judge, Junior Division, Satara. By this suit, the respondent wants that the petitioner should not interfere with the property as regards the right of way. The petitioner has filed the counter claim and has asked for a relief of the same nature. The petitioner filed the application before the learned Judge at Exhibit 26 praying for appointment of the Court Commissioner. I have perused the 2 impugned order dated 18.8.2009 passed by the learned 2nd Joint Civil Judge, Junior Division, Phaltan. 2. Learned Advocate for the petitioner submitted that since the identity of property in dispute, the appointment of Commissioner is necessary. Learned Advocate for the petitioner submitted that the learned trial Judge has not considered this aspect in the proper perspective and that is how he has rejected the said application. Learned Advocate for the petitioner relied upon the two judgments which are as follows: i) S.A.No.373 of 1989 before High Court of Bombay, Nagpur Bench in the case of Kashinath s/o. Ramkrishna Chopade vs. Purshottam Tulshiram Tekade & Ors. ii) S.A.No.220 of 1999 before High Court of Bombay, Nagpur Bench in the case of Yeshwant Bhadugji Ghuse vs. Vithobaji Laxman Ladekar He took me through the said judgments to say that the law is well settled as regards appointment of Court Commissioner. I have perused the judgments. It is to be noted that the plaintiff has filed suit in regard to the right of way and in the said suit the petitioner has 3 filed a written statement cum counter claim. On perusal of the original plaint as well as the counter claim, it is clear to all parties to the suit of the property which road is in dispute is well known. If this be so, there is no question of collecting material or getting additional information through the Commissioner. It is well settled that the party to the suit can not collect material/evidence with the assistance of the court of Appointment of Court Commissioner. The learned trial Judge has reiterated the said principal in the impugned order. He has further observed that the responsibility to prove the defendants case is denied and the appointment of the Commissioner cannot be granted. 3. I have perused the impugned order. I am inclined to observe that no interference is required. Petition is required to be dismissed. Hence following order is passed. ORDER i) Petition is dismissed at the stage of admission. There shall be no order as to costs. (R.Y.GANOO, J.)