(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 169 OF 2011 1. Smt. Archana Jayant Deshmukh, Age : 45 years, Occupation : Service. 2. Shri Anil Vinayak Deshmukh, Age : 58 years, Occupation : Business. Both R/o. Choukati Karanja, .. Petitioners Ahmednagar. (Original plaintiffs) versus 1. Lilabai Ratilal Mutha, Age : 70 years, Occupation : Household. 2. Shri Sushil Ratilal Mutha, Age : 55 years, Occupation : Business. 3. Shri Aanand Ratilal Mutha, Age : 45 years, Occupation : Business. 4. Shri Ashish Sushil Mutha, Age : 24 years, Occupation : Business (All R/o. Navi Peth, near Taitan show room, Ahmednagar, .. Respondents Taluka & Dist. Ahmednagar) (Original defendants) (2) ....................... Mr. U.S. Malte, Advocate, for the petitioners. Mr. V.S. Bedre, Advocate, for respondent nos.1 to 4. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 28TH MARCH 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. U.S. Malte, for the petitioners / original plaintiffs, and Adv. Mr. V.S. Bedre, for the respondents / original defendants. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. The petitioners have challenged the order dated 23-4-2010, passed by the learned 4th Joint Civil Judge (Senior Division), Ahmednagar, below Exhibit 8 in Regular Civil Suit No. 17/2007, thereby rejecting the application filed by the petitioners seeking appointment of court commissioner. (3) 4. The suit is for removal of encroachment. It is apparent that in such matters, report of technical expert by appointing him as court commissioner is necessary. Reasons given by the trial court are totally irrelevant. Pendency of application under Order XXVI Rule 9 of CPC for over three years cannot be a relevant ground for its rejection. The burden is always upon petitioners / plaintiffs and by report of commissioner, that burden is not diluted. The commissioner has only to prepare a report as per position available on spot and he cannot record any finding about ownership, etc. 5. In the result, the petition is allowed. (i) The impugned order dated 23-4-2010, passed by the learned 4th Joint Civil Judge (Senior Division), Ahmednagar, below Exhibit 8 in Regular Civil Suit No. 17/2007, is quashed and set aside. Application at Exhibit 8 before trial court is granted. (ii) Trial court shall appoint a competent technical person to measure the properties of parties and to submit a proper report. After the report is received, parties shall be given liberty to file their objections to it and thereafter evidence shall be recorded. (4) 6. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp169