VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT Petition No. 6064 OF 2007 Raghunath Dattu Chavan Petitioner Vs. Vinayak Hari Chavan & Anr. Respondents Mr. S. A. Rajeshirke, for the Petitioner. Mr. Yogesh Sankpal, for the Respondents. CORAM : A. A. SAYED, J. DATE : JUNE 23, 2008. PC :- 1. This petition is directed against the order dated 26th July 2007, whereby the application filed by the petitioner/ plaintiff in Regular Civil Suit No. 148 of 2006 for appointment of Court Commissioner came to be rejected. 2. It is an admitted fact that the measurement of agricultural land Gat No. 1593, admeasuring 0.17 Ars, situate in village Arwade, was carried out in presence of respondent No.1 by T.I.L.R. Tasgaon, on 20th December 2005. The petitioner also states that in the aforesaid measurement it was found that the respondent made encroachment on 2R land. The trial court in exercise of its discretion, observed in the - 2 - impugned order that "it is true that the same "Bandpad" is shown in between Gat No.1 592 and 1593 but the plaintiff has filed this suit assuming that the said "Bandpad" are is the encroached portion of Gat No. 1593 unless and untill first measurement is to be decided as erroneous, there is no question of appointment of Cadestral Surveyor." While exercising the jurisdiction, the learned trial Judge has rejected the application, declining thereby to appoint court commissioner. 3. The learned counsel for the petitioner has relied upon the decisions in the case of - (1) Ramchandra Ramchandra Ramchandra S/o Bhikaji Jagtap Vs. Dudharam L. S/o Bhikaji Jagtap Vs. Dudharam L. S/o Bhikaji Jagtap Vs. Dudharam L. Padvekar Padvekar Padvekar (dead, through L.Rs.) & Ors. [2003(4) ALL (dead, through L.Rs.) & Ors. [2003(4) ALL (dead, through L.Rs.) & Ors. [2003(4) ALL MR MR MR 990] 990] 990]; (2) Kashinath S/o Ramkrishna Chopade Vs. Kashinath S/o Ramkrishna Chopade Vs. Kashinath S/o Ramkrishna Chopade Vs. Purushottam Purushottam Purushottam Rulshiram Tekade & Ors. [2005(4) All MR Rulshiram Tekade & Ors. [2005(4) All MR Rulshiram Tekade & Ors. [2005(4) All MR 519] 519] 519] ; and Rajesh s/o Ratanlal Agrawal Vs. Ramkisan Rajesh s/o Ratanlal Agrawal Vs. Ramkisan Rajesh s/o Ratanlal Agrawal Vs. Ramkisan s/o s/o s/o Jagannath Khandelwal & Anr.[2002(3) All MR 881]. Jagannath Khandelwal & Anr.[2002(3) All MR 881]. Jagannath Khandelwal & Anr.[2002(3) All MR 881]. Relying upon abovesaid decisions of Single Bench of this Court, the learned counsel for the petitioner has sought to argue that the object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. He further submitted that in order to determine that there has been encroachment, it is - 3 - always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue. In case of Rajesh Agarwal (supra), the court has held that proper survey of properties and fixing line of demarcation has to precede adjudication and passing of effective order or decree and appointment of court commissioner is absolutely essential. The trial court rejected the appointment of court commissioner. 4. On perusal of the impugned order and the decisions cited by the learned counsel for the petitioner, I am of the view that as the measurement of the land Gat No. 1593 which was carried out by TILR, is already on record, as observed in the impugned order by the trial court, appointment of Court Commissioner again is not necessary. I am therefore, not inclined to interfere with the discretion exercised by the trial court in rejecting the application of the petitioner for appointment of Court Receiver. 5. The petition is dismissed. Sd/- [ A. A. SAYED, J.]