1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4057 OF 2008 Vasant Dhondiram Raut ...Petitioner vs. Jagannath Pandurang Kumbhar & Ors. ...Respondents Mr.Arun Patekar i/b Mr.P.A.Pise for the petitioner Mr.S.D.Thokade for respondent nos.2 and 3 CORAM :A.S.OKA,J. DATE : SEPTEMBER 10, 2009 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the 2nd and 3rd respondent. The petitioner is the second plaintiff and the 2nd and 3rd respondents are the 1st and 3rd plaintiffs. The 1st respondent is the original defendant. Office remark shows that the first respondent has declined to accept the private notice. 2 The application at Exh.153 filed by the petitioner and the 2nd and 3rd respondents was essentially for pointing out that the court commissioner (T.I.L.R.) was ordered to be appointed under order dated 27th February 2002 below Exh.105 has not done the job as directed and therefore, superior survey officer namely the District Inspector of Land Records be appointed as the court commissioner to carry out the work referred to in the 2 application at Exh.105 and to submit a report. The said application was allowed by the trial court by order dated 17th March 2007. The objection of the petitioner to the said order was that the District Inspector of Land Records ought to have been directed to comply with the order below Exh.105 and he could not have been directed to carry out measurement of lands bearing Gat Nos.57 and 58 as the said exercise has been already done. An application for review of the said order was made by the petitioner which has been rejected by the trial court 3 The order below Exh.105 directed that the T.I.L.R or his subordinate officer be appointed as a court commissioner who will visit the disputed well and will bring on record whether there are bore-wells dug in the disputed well. He was directed to ascertain the number of such bore-wells and their respective locations. The case of the plaintiffs made out in application at Exh.105 is that the first respondent-defendant has dug horizontal bore-wells as a result of which the natural flow of water to the disputed well has been disturbed. The application at Exh.153 was made essentially for appointing a superior survey officer to comply with the order passed below Exh.105 as according to the plaintiffs, the earlier court commissioner has not abided by the order below Exh. 105. 3 4 As per the order passed below Exh.56 which was a pursis filed by the parties, a survey officer was appointed as a court commissioner to measure the lands bearing Gat nos.56 and 58 for demarcation of boundaries and to ascertain the location of the well. Accordingly, a survey has been carried out and the report has been placed on record. Thereafter, a prayer made for re- survey and measurement of the land bearing Gat Nos.56 and 58 has been rejected by this court. While passing order below at Exh.153, a direction to carry out the measurement of the said Gat Nos.56 and 58 and to ascertain the exact location of the bore wells could not have been issued as the said prayer has been rejected by this court. 5 To that extent the order dated 17th March 2007 passed below Exh.153 needs modification. 6 Hence I pass the following order : i) The District Inspector of Land Records who is appointed as the court commissioner under the order dated 17th March 2007 will comply with the order dated 27th February 2002 passed below application at Exh.105. ii)It is clarified that as the measurement and survey 4 of land bearing Gat Nos.56 and 58 has been already carried out by the Court Commissioner, the said exercise shall not be repeated by the District Inspector of Land Records while carrying out the work of court commissioner in terms of the order dated 27th February 2002 passed below Exh.105. iii)With aforesaid modification, writ petition is disposed of. JUDGE