1 WP-8491.10.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8491 OF 2010 Shri Vishnu Narasu Katkar : Petitioner versus Madhukar Maruti Katkar and ors. : Respondents. Mr. Vijay Killedar for the Petitioner. Mr. Mahindra Deshmukh for the Respondent Nos.3 and 6. CORAM : R M SAVANT, J. DATE : 14th November 2011 P.C. 1 The above Petition takes exception to the order dated 20/7/2010 passed by the learned Joint Civil Judge, Junior Division, Vita by which order the application Exhibit-49 filed by the Petitioner for appointment of Court Commissioner has been rejected. The Petitioner is the original Plaintiff who has filed Regular Civil Suit No.366 of 1999 against the Defendants for injunction simplicitor. In the said suit the Plaintiff has alleged that some encroachment was carried out by the Respondents, who are the Defendants to the said suit. It appears that the Plaintiff had earlier filed an Application Exhibit-31 for appointment of Commissioner which, according to the Respondents herein, came to be rejected by an order dated 14/8/2006. But according to the Petitioner the said application was not pressed. Be that as it may, the Petitioner has filed second Application-Exhibit-49 which application has been filed after his cross examination was over. The said application has 2 WP-8491.10.sxw been rejected by the trial Court on the ground that Petitioner/Plaintiff now wants to incorporate a new theory of encroachment, when it is no where his case that he is seeking possession of the encroached land. The trial Court on the basis that appointment of Court commissioner cannot be used for collecting evidence through the Court has rejected the said application. The trial Court was of the view that it is for the Plaintiff to prove his ownership and title over the suit property by leading cogent evidence. 2 The learned counsel for the Petitioner/Plaintiff seeks to rely upon the judgment of this Court reported in 2004(2) Mh.L.J. 722 in the matter of Kashinath Chindhuji Shastri v/s. Haribhau Nathuji Bawanthade wherein a learned Single Judge of this Court has held that if there is a dispute about an encroachment or dimension of a site, a Commissioner need be appointed to take joint measurement. The learned counsel for the Petitioner also placed reliance on another judgment of a learned Single Judge of this Court reported in 2009(5) Mh.L.J. 279 in the matter of Vijay s/o Shrawan Shende and ors v/s. State of Maharashtra and ors. wherein it has been held in Para 35 of the said judgment that Cadesteral Surveyor will have to be appointed to ascertain the boundary marks and boundaries of undisputed and unencroached area of the land, based on undisputed boundary marks, as seen in the public record, and thereafter measure the extent of encroachment. It has also been observed in Para-34 of the said judgment that in absence of such records being in hands of the Cadesteral Surveyor-the Court Commissioner or otherwise, the extent of 3 WP-8491.10.sxw encroachment is a matter which is incapable of adjudication. In the facts and circumstances of the present case, the said judgments have not application. 3 In my view, considering the facts and circumstances of the present case when there is no foundation as regards the boundaries etc. of the property in question, appointment of the Court Commissioner would be futile, and as rightly observed by the trial Court, the Petitioner/Plaintiff has to prove his case by leading cogent evidence. In that view of the matter, no case for interdiction is made out. The above Writ Petition is accordingly dismissed. [R.M.SAVANT, J]