( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 428 OF 2007 1. Bhagwat s/o Bhagwan Shelke, R/o Khamaswadi, Tq. Kalamb, District Osmanabad. 2. Mahendra s/o Bhagwat Shelke, R/o as above. PETITIONERS VERSUS Digambar s/o Bhavani Shinde, R/o Chincholi, Post Pangari, Tq. Barshi, Dist. Solapur. RESPONDENT ..... Mr. A.B. Tele, advocate for the petitioners. Mr. P.G. Godhamgaonkar, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th July, 2009] PER COURT : 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties. 2. By this petition, the petitioners challenge ( 2 ) order rendered by the learned Joint Civil Judge (J.D.), Kallam on their application (Exh-52) filed in suit bearing R.C.S. No. 450/2001. The petitioners are original defendants. Their application (Exh-52) seeking appointment of the Court Commissioner came to be rejected. 3. The respondent/plaintiff filed suit for declaration and injunction. He averred that he is owner of 00 Hectare 1 Are land out of Gat No. 54 and 01 Hectare 23 Ares land out of Gat No. 55. He described the suit lands as indicated in the plaint map. The petitioners have filed another map wherein they have indicated their lands bearing Gat No. 1127/1336. The lands of the parties are situated at village Khamaswadi in Kallam Tahsil. The petitioners alleged that location of the suit lands as described in their sale-deed is required to be ascertained in accordance with the abuttals shown in their sale-deeds. They submitted that they have purchased land Gat No. 1127/1336 much before the respondent’s purchasing of the adjacent land gat No. 55. They moved an application for appointment of the ( 3 ) Court Commissioner in order to obtain clarification regarding location of the lands, particularly their own gat No. 1127/1336. The learned Civil Judge came to the conclusion that the application filed by the petitioners was outside the realm of provisions contained in Order- XXVI Rule-9 of the Civil Procedure Code and, therefore, it cannot be granted. The learned Civil Judge held that the purpose of the petitioners is to collect evidence. He noticed that the application was moved at belated stage. For such reasons, the application came to be rejected. 4. Heard learned counsel for the parties. 5. The purpose of appointment of Court Commissioner is basically to hold a scientific, technical or expert investigation as contemplated under section 75 (e) of the Code of Civil Procedure. The powers envisaged under Order-XXVI Rule-9 are derived from the main provision i.e. Section 75. Section 75 (b) would make it amply clear that the Court may issue a Commission in order to make a local investigation. The ( 4 ) Commissioner cannot be, however, directed to record statements at the spot or to collect evidence. In the present case, there are two (2) different maps submitted by the parties. The chief purpose of the application (Exh-52) appears to be of clarification in respect of the location of the lands of the parties. The learned Civil Judge observed that the petitioners did not make any attempt to carry out measurements at their own instance. He vaguely stated that if the Commissioner is appointed, then it would amount to collecting of evidence. There is no foundation to such inference drawn by the learned Civil Judge. The reasoning of the trial Court is quite illogical and faulty. The appointment of Court Commissioner is normally required to be made in order to obtain better information regarding situation which exists at the property in dispute. The claim of the respondent is regarding ownership of his land. The petitioners would submit that if the location of both the lands are made clear by appointment of the Court Commissioner, then it would be proper so as to narrow down the area of dispute. ( 5 ) 6. The Apex Court in “Haryana Waqf Board v. Shanti Sarup and others” (2008) 8 S.C.C. 671, held that whenever there is a dispute of demarcation of the disputed land, it would be appropriate for the Court to direct an investigation by appointing Court Commissioner under Order-XXVI Rule-9 of the Code of Civil Procedure. This Court in “Kashinath s/o Ramkrishna Chopade v. Purushottam Tulshiram Tekade and others” 2005 (4) Mh.L.J. 471, held that the boundary dispute and dispute about identity of the lands are the instances where the Court should order a local investigation under Order- XXVI Rule-9 of the Civil Procedure Code. The legal position is quite well settled in this behalf. There is hardly any material on record to show that the appointment of Commissioner was sought for the purpose of collecting evidence. Considering these aspects, the impugned order rendered by the learned Civil Judge (J.D.), Kallam is quite perverse and liable to be interfered with. 7. In the result, the writ petition is allowed. ( 6 ) The impugned order is quashed. Rule is made absolute. The application (Exh-52) be deemed as granted and the learned Civil Judge is directed to issue Commission as sought by the petitioners, on payment of the necessary charges so as to carry out measurement of both the lands and to describe the boundaries thereof. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP428-07