1 wp-4751-11 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4751 of 2011 Bhau Vishnu Shelke & Ors. .. Petitioners Versus Pundalik Kashinath Bhoir & Ors. .. Respondents Mr. Ameya Tamhane for the Petitioners Mr. Vijay Gharat for Respondent Nos.1 to 14 CORAM : R.M.SAVANT, J. DATE : 18th NOVEMBER, 2011 P.C. : 1 Rule with the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to the order dated 31-3-2011 passed by the Learned Joint Civil Judge, J.D. Karjat, by which order, the Application Exhibit 66 in Regular Civil Suit No.58 of 2006 for appointment of the Court Commissioner came to be rejected. 3 The Petitioners are the Plaintiffs in Regular Civil Suit No.58 of 2006. It is their allegation that the Defendants have constructed a Samaj Mandir on the portion of the land belonging to them. It is further their case that on 17-11-2009, they had approached the TILR for carrying out the measurement. The TILR went on the site but could not carry out the measurement in view of the obstruction of the villagers. 4 It is the case of the Plaintiffs that the encroachment has been in 2 wp-4751-11 breach and violation of the Order passed on application for temporary injunction dated 24-11-2006. It is in the said context that the Petitioners are seeking appointment of the Court Commissioner. 5 The said application Exhibit 66 was opposed by the Defendants on the ground that the TILR has already carried out the measurement of the suit land on 15-11-2006. The said application Exhibit 66 was considered by the Trial Court and by the impugned order dated 31-3-2011 the said application came to be rejected. The said application came to be rejected principally on the ground that since the measurement was already carried out on 15-11-2006, the Plaintiffs could, therefore, lead their evidence by calling the TILR for establishing the factum of evidence. 6 It has been held by this Court as well as the Apex Court that in matters in which there is an allegation of encroachment and where there is a foundation in the plaint, it is preferable that the Court Commissioner is appointed to submit a report. Since in the instant case, the measurement has already been carried out on 15-11-2006 as observed by the Trial Court in the impugned order dated 31-3-2011, it would be just and proper to appoint a Court Commissioner to report on the alleged encroachment carried out by the Defendants by carrying out the construction of the Samaj Mandir. The said report in my view, would facilitate the adjudication of the issue involved in the said suit. 7 In that view of the matter, the impugned order dated 31-3-2011 is 3 wp-4751-11 quashed and set aside and the Application Exhibit 66 is allowed. The TILR, Taluka Karjat is appointed as the Court Commissioner to carry out the commission work covered by the Application Exhibit 66. The TILR would visit the site by giving prior notice to the parties and submit his report to the Trial Court within a period of 6 weeks from date. 8 Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. (R.M.SAVANT, J.)