1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4896 OF 2009 The India Cements Ltd., Parli Vaijnath, Dist.Beed, Through it’s Manager - Mr.Harising J.Rajput, Age: 49 Yrs., occu. Service, r/o C/o The India Cements Ltd., (Grinding Unit), Dharmapuri Road, Parli Vaijnath, District Beed. - PETITIONER VERSUS Vaijnath s/o Mahadu Pankhade Age: 70 Yrs., occu. Agril. r/o Deshmukh Galli, Ganeshpar Tq. Parli Vaijnath, District Beed. - RESPONDENT ***** Mr.N.L.Jadhav,Advocate for Petitioner; Mr.Rajendra Deshmukh, Advocate for Respondent. ----- CORAM : R.K.DESHPANDE, J. DATE : 10th June, 2010. ORAL JUDGMENT : 1) Heard. This petition challenges the order dated 15.7.2009 passed by the learned Civil Judge, Junior Division, Parli, below Exhibit-25 2 in Regular Civil Suit No. 42/2009. The respondent is the original plaintiff, who had filed an application (Exhibit-25) in RCS No. 42/2009 for appointment of local Court Commissioner for carrying out measurement of the property. This application has been allowed by the learned Judge by the impugned order, thereby appointing T.I.L.R as Court Commissioner for the purpose of investigation and measurement of the suit site and the site of the defendant in order to determine the question as to who is the real owner of the suit site, i.e. 11 gunthas of land. The trial Court has further appointed one Shri V.B.Nagargoje, Advocate, as Court Commissioner to make local inspection of the suit site, as to whether the defendant is collecting murum, stones and fodder of stock on the suit site. This order is under challenge in the writ petition at the instance of the original defendant. 2) Shri Jadhav, the learned Counsel for the petitioner, has urged that the Trial Court has by the impugned order, appointed T.I.L.R for the purposes of ascertaining as to who is the real owner of the suit site, i.e. 11 gunthas of land. The said order is beyond the scope of powers of the Civil Court under Order 26 Rule 9 of CPC. He further submits that the appointment of the advocate as Court Commissioner was totally 3 unwarranted as the purpose for which the investigation is sought to be ordered, has nothing to do either with the main relief in the plaint or with the relief of temporary injunction claimed in the application under Order 39 Rule 1 and 2 of CPC. 3) As against the aforesaid submissions, Shri Deshmukh, the learned Counsel appearing for the original plaintiff/respondent herein, has submitted that the Trial Court was right in appointing the T.I.L.R as Court Commissioner for investigation and measurement of the suit site. According to him, the petitioner has purchased two acres and 19 gunthas of land from the respondent/plaintiff on 5.12.2007 and remaining 11 gunthas of land, out of the said survey number, still remains to be owned and possessed by the plaintiff/respondent herein. According to him, the petitioner/defendant is trying to encroach upon 11 gunthas of land, which is owned and possessed by the plaintiff. 4) Both the learned Counsels appearing for the parties do not dispute that the Court Commissioner cannot be appointed to ascertain as to who is the real owner of the suit site, i.e. 11 gunthas of land. If at all, the T.I.L.R. is to be appointed as Court Commissioner, his 4 appointment would be only for the purpose of carrying out the measurement of the land owned by the plaintiff and the defendant. The learned Counsel for the parties also do not dispute that the petitioner/original defendant is the owner of 2 acres and 19 gunthas land, which they have purchased from the plaintiff and the plaintiff is the owner of 11 gunthas of land out of said survey number. 5) In view of the aforesaid position, the order passed by the Trial Court for appointment of T.I.L.R as Court commissioner to investigate as to who is real owner of the suit site, cannot be sustained in the eyes of law. Similarly, no purpose would be served by appointing the advocate, referred above, to make local investigation to ascertain as to whether the defendant is collecting murums, stones and fodder of stock from the suit site. The application for injunction filed by the plaintiff is pending for adjudication. If the plaintiff is ultimately held entitled to grant of injunction, then such investigation would be fruitless. 6) In view of the submissions made by the learned Counsel for the parties and undisputed position of law, as pointed out above, the impugned order dated 15.7.2009 passed below 5 Exhibit-25 by the Civil Judge, Junior Division, Parli Vaijnath, needs to be modified and substituted as under : The T.I.L.R is appointed as Court Commissioner for the purpose of investigation and measurement of the property owned by the petitioner/defendant in terms of the sale-deed dated 5.12.2009 to the extent of 2 acres and 19 gunthas of land as also to measure and ascertain 11 gunthas of land, remaining after measurement of 2 acres and 19 gunthas of land, purchased by the petitioner. The Commissioner shall submit his report along with map within a period of one month from the date of communication of this order. The report shall be made after giving notice to both the parties and asking them to remain present at the time of investigation and measurement. 7) Rule is made absolute in the aforesaid terms with no orders as to costs. sd/- (R.K.DESHPANDE) JUDGE bdv/p/wp4896.09 Authenticated copy (BD VADNERE,PS)