1 wp 3923.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3923 OF 2010 Kishor Ganpati Manudhane, Age : 55 Years, Occu. : Agril. & Service, R/o Erandol, at present 7, Dinanathwadi, Ring Road, At Post Taluka & Dist. Jalgaon. .. .. Petitioner Versus 1. Shivdayal Chunilal Sharma, Age : 55 Years, Occu. : Service, R/o Main Road, Erandol, Tq. Erandol, Dist. Jalgaon. 2. Rajkumar Ganpati Manudhane, Age : 47 Years, Occu. : Business, R/o Main Road, Erandol, Tq. Erandol, Dist. Jalgaon. 3. Vivek Ganpati Manudhane, Age : 43 Years, Occu. : Agril., R/o Main Road, Erandol, Tq. Erandol, Dist. Jalgaon. 4. Devendra Ganpati Manudhane, Age : 40 Years, Occu. : Business, R/o Main Road, Erandol, Tq. Erandol, Dist. Jalgaon. 2 wp 3923.10 5. Sau. Indira Pratap Patil, Age : 38 Years, Occu. : Household, R/o. A/5, Gaurinandan Apartment, Thattenagar, Gangapur Road, At Post Taluka & Dist. Nashik. .. .. Respondents Shri P. S. Shendurnikar, Advocate for the Petitioner. Shri U. S. Malte, Advocate for the Respondent No. 1. The Respondent Nos. 2 to 5 served. CORAM : S. V. GANGAPURWALA, J. DATE : 07TH JUNE, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The petitioner had filed a suit for perpetual and mandatory injunction. During the pendency of the suit the petitioner moved an application for appointment of Commissioner U/Sec. 75 read with Order 26 Rule 9 of the Code of Civil Procedure for appointment of City Survey Officer to measure land CTS Nos. 2028 and 2029. Said application came to be rejected. Aggrieved thereby the present writ petition is filed. 3. Shri Shendurnikar, the learned counsel for the petitioner 3 wp 3923.10 submits that the dispute between the parties would revolve around the area. According to the petitioner the wall in question is his exclusive wall, whereas the respondent No. 1 has come with a case that same is a common wall. In such circumstances, the appointment of an expert to measure the land would assist the Court in coming to a just conclusion. For the said purpose the learned counsel relies on the judgment of learned Single Judge of this Court in a case of Girish Vasantrao Boyar and anr. Vs. Nimbaji Warluji Bambal reported in 2009(4) Mh. L. J. 371 and in a case of Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar reported in 2010(3) B.C.R. 373. 4. Per contra Shri Malte, the learned counsel for the respondent No. 1 submits that it is settled position of law that Commissioner cannot be appointed to collect the evidence. Even Exhibit 6 is yet not decided. Even the Court below has observed that the petitioner wants to collect evidence which cannot be permitted. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others reported in 2001(2) Mh. L. J. 959. The learned counsel further states that, the petitioner has to prove his own case and cannot 4 wp 3923.10 collect evidence in such a fashion. 5. The dispute between the parties is in respect of the wall. According to the petitioner the said wall is exclusively owned by the petitioner and is situated in the land CTS No. 2028. Whereas, it is the case of the present respondent No. 1 that the said wall is common wall and not exclusively owned by the petitioner. Whether the wall is situated exclusively in the property of the petitioner would be a moot question to be decided by the Court. The said aspect would be clarified in a better manner by a surveyor and after measurement of both the properties i. e. CTS Nos. 2028 and 2029. The Apex Court in a case of Haryana Waqf Board vs. Shanti Sarup and ors. reported in (2008) 8 SCC 671 has held that whenever there is dispute of demarcation of the disputed land, it is appropriate for the Court to direct an investigation by appointing a local Commissioner U/O 26 Rule 9 of the Code of Civil Procedure. In view of the said dictum and taking into account the conspectus of the present matter, it would be in the fitness of things to direct the expert i. e. the City Survey Officer to measure both the city survey numbers i. e. CTS Nos. 2028 and 2029 as per the available record till date. 5 wp 3923.10 6. In the light of the above, the writ petition is allowed. The Court below shall appoint City Survey Officer as a Commissioner to measure land CTS Nos. 2028 and 2029 situated at Erandol with a direction to measure the said city survey numbers as per the available record till date. The petitioner shall bear the cost of measurement. 7. The rule is made absolute accordingly, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11