1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.7931 OF 2009 Bharat Dnyanoba Nakhate. Petitioner. V E R S U S The State of Maharashtra and others. Respondent. Shri B.V.Thombre, Advocate for the petitioner. CORAM : B. R. GAVAI, J : DATE : 25TH NOVEMBER, 2009. PER COURT :- 1. By way of present petition, the petitioner impugns the order dated 10.11.2009 passed by the Ld. Civil Judge Junior Division, Washi, District Osmanabad thereby rejecting the application filed by the present petitioner for appointment of Court Commissioner. 2- The plaintiff has filed suit claiming injunction restraining the defendants from disturbing peaceful possession of suit premises. During the pendency of the suit, an application came to be filed for appointment of Court Commissioner. Same is rejected. Subsequent to it another application came to be filed below Exh.48 for the same purpose. The appointment of the Court Commissioner was sought, for finding out the measurements of the suit premises in dispute and further to find out how many doors and windows were 2 there in the suit premises. Perusal of the application at Exh.48 would reveal that various details with regard to property in question and adjoining open area have been sought to be examined by the Court Commissioner. Said application is rejected by the learned trial court, vide order impugned. Being aggrieved thereby present petition is filed. 3- Shri Thombre, the learned counsel appearing on behalf of the petitioner, submits that trial court has erred in rejecting the application. He submits that to find out factual position it was necessary that court commissioner ought to have been appointed. In support of this submission, the learned counsel for the petitioner places reliance on the judgments of Single Judges of this Court in the case of Manohar Mahadeorao Pagrut v/s Sau Sunanda Ramdas Tharkar reported in 2008 (3) AIR Bom R 337, in the case of Smt. Shamlata wd/o Manohar Raut and others vs. Vishweshwara Tukaram Giripunje and another reported in AIR 2008 Bombay 155, in case of Kashinath Ramkrishna Chopade v/s Purushottam Tulshiram Tekade and ors reported in 2005 (4) Mh.L.J 471. 4- Shri Thombre further submits that the plaintiffs are claiming right on the basis of an unregistered sale deed which does not bestow any title. Reliance is placed on Judgment of Apex Court in the case of Suraj Lamp and Industries Pvt Ltd through Director vs. State of Haryana and another reported in 3 2009 (6) Mh.L.J. 11, in case of Davendra Singh and others vs. State of Rajasthan and others reported in AIR 2002 Rajasthan 66. 5- The provisions of Order 26 Rule 9 are discretionary in nature. Unless it is found that discretion exercised by the learned trial court has been exercised with perversity, it is not permissible for this Court to interfere with the same under Article 227 of the Constitution of India. The perusal of the judgment of the Learned Single Judge in the case of Manohar v/s Sunanda, Smt. Shamlata V/s Vishveshwara (cited supra) is concerned, it could be seen that both the cases arose after evidence was recorded on behalf of the parties and after recording of the evidence it has been found by the learned judges of this Court, in facts of the said cases, that appointment of court commissioner was necessary. In so far as judgment in case of Kashinath v/s Purushottam and ors is concerned, this Court vide judgment reported in 2009 (2) Mh.L.J 487 in case of Pandurang Nandlal Chandak and another v/s Sandip Mukundrao Pensalwar and another has held that view taken by the learned Single Judge in case of Sanjay Namdeo Khandare V/s Sahebrao Kacharu Khandare and others reported in 2001 (2) Mh.L.J. 959 is more correct view. The view taken in the case of Kashinath v/s Purushottam is identical with the view taken by the Learned Single Judge in case of Ramchandra v/s Dudhram which has been found by this court to be not laying correct position of law. I 4 am therefore of the considered view that the reliance placed by the learned counsel on these judgments would not be any assistance to the petitioner. 6- In so far as the judgment of Apex Court in the case of Suraj Lamp v/s Sate of Haryana is concerned, the same pertains to necessity of registration for transfer of immovable property. It is to be noted that the the application which was filed by the present petitioner was filed on behalf of the defendants. It is the plaintiff-respondent who will have to prove his case, as to whether he has valid title to the suit land or not by adducing evidence in that behalf. The evidence is yet to be recorded in the matter. In that view of the matter, I do not find that aforesaid judgment is also be applicable to the facts of the present case. 7- As I have already held above, it cannot be said that discretion exercised by the learned trial court has been exercised with perversity so as to warrant interference under Article 227 of the Constitution. Hence, rejected. ( B. R. GAVAI, J. ) *** aaa/7931.09