1 wp 7599.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7599 OF 2010 Shivaji Malba Chamkure & anr. .. Petitioners Versus Rajaram Dattatray Telang .. Respondent Shri A. V. Patil, Advocate for Petitioners. Shri S. S. Manale, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 07TH JUNE, 2011. PER COURT : . The petitioners are original defendants. The respondent filed suit for declaration of ownership and injunction. During the pendency of suit present petitioners moved an application for appointment of T. I. L. R. as a Court Commissioner as per Section 75 read with Order 26 Rule 9 of the Civil Procedure Code. Said application came to be rejected. Aggrieved thereby the present writ petition is filed. Shri Patil, the learned counsel states that in fact the case of the present respondent/plaintiff is that the measurement was not properly carried out and it was in 2 wp 7599.10 his absence. The procedure was not properly followed. To eradicate all these controversies the present petitioners have moved an application for measurement. The measurement could elucidate the dispute between the parties. As such, the Commissioner ought to have been appointed. 2. Shri Manale, the learned counsel states that in fact the defendants/present petitioners have examined the T. I. L. R. as their witness and as the evidence of T. I. L. R. does not benefit the petitioners, the present application is filed which is not permissible. 3. The suit is for declaration of ownership and injunction. There is no controversy regarding removal of encroachment nor the plaintiff has sought a relief of possession. When the suit is for declaration of ownership and injunction it is for the plaintiff to prove his ownership and possession over the land in dispute. According to the petitioners, the land was already measured and the Cadestrial Surveyor is also examined. The pros and cons of the evidence of the catestrial surveyor would be considered at the time of final adjudication. Even according to the petitioners there is another land intervening the land of the present 3 wp 7599.10 petitioners and the respondent. In view of the above facts, I do not feel that it is necessary to appoint the Cadestrial Surveyor i. e. T. I. L. R. for remeasurement of the land. The order does not suffer from any error of jurisdiction. Therefore, the writ petition is rejected, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11