1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. WRIT PETITION No. 1175 OF 2009 Tejrao Dhanraj Wankhede ....vrs... Dilip Ramchandra Sambre - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - -------------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - ---------------- - - - - - - - - - - - - - - - - - - - CORAM : Smt. VASANTI A. NAIK, J. DATE : 24 th APRIL, 2009 Heard Shri C.F. Bhagwani, the learned Counsel for the petitioner and Ms. V. Wasu, the learned Counsel for the respondent. By this petition, the petitioner impugns the order passed by the 2nd Joint Civil Judge, Senior Division, Nagpur on 10.02.2009, rejecting an application filed by the petitioner under Order 26 Rule 9 of the Code of Civil Procedure for appointment of a Court Commissioner to ascertain the possession of the defendant/petitioner over the suit property. It is submitted on behalf of the petitioner that the trial Court was justified in rejecting the application filed by the petitioner as both the parties were asserting their possession over the suit 2 property, and hence it was very much necessary for the trial Court to appoint a Court Commissioner to ascertain the correct factual position. The learned counsel for the petitioner submitted that, the trial Court was not justified in observing that the petitioners wanted to collect evidence on the point of possession through the Court Commissioner and this was not permissible. Ms. Wasu, the learned Counsel for the respondent on the other hand supported the order passed by the trial Court on 10.02.2009 and submitted that it is a settled position of law that the Court Commissioner cannot be appointed merely for the purpose of considering as to which party is in possession of the suit property. The learned counsel for the respondent sought for the dismissal of the Writ Petition. I have considered the submissions made on behalf of the parties and perused the impugned order dated 10.02.2009. It appears from a perusal of the impugned order that the order dated 10.02.2009 is extremely just and proper. The Court rightly observed that it was not necessary to appoint Court Commissioner merely for considering as to which party was in possession of the suit property. The Court had observed that both the parties had produced necessary evidence on record and the 3 Court did not find it necessary to appoint Court Commissioner as his assistance was not required by the Court to arrive at a conclusion on the basis of the evidence tendered by the parties. The judgments reported at 2004 [4] CLJ 345, (2008) 8 SCC 671 & 2004 [3] CLJ 371, cannot be made applicable to the facts of this case, as the parties have not sought appointment of the Court Commissioner in the reported cases to ascertain the possession of the parties over the suit property. In the result, the Writ Petition fails and is dismissed, with no order as to costs. JUDGE Rgd