(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5574 OF 2009 Pralhad s/o. Vaijoba Demgunde, Age 70 years, Occupation : Agriculture, R/o. Poos, Taluka : Ambajogai, District : Beed, Through General Power of Attorney Holder, Bhausaheb s/o. Pralhadrao Demgunde, .. Petitioner Age : 32 years, (Original Occupation : Agriculture, defendant) R/o. as above. versus 1. Ratanbai w/o. Sahebrao Saigunde, Age : 48 years, Occupation : Household, R/o. Village Hol, Taluka : Kaij, District : Beed. 2. Harischandra s/o. Sonba Hake, Age : 60 years, Occupation : Agriculture, R/o. Village Poos, .. Respondents Taluka : Ambajogai, (Original District : Beed. plaintiffs) (2) .......................... Mr. S.V. Chandole, Advocate, holding for Mr. V.G. Sakolkar, Advocate, for the petitioner. Mr. Vivek Bhavthankar, Advocate, for respondent no.2 caveator. .......................... CORAM : B.R. GAVAI, J. DATE : 18TH SEPTEMBER 2009. COURT'S ORDER : 1. The petition arises out of the order passed by the learned Ad hoc District Judge-3, Ambajogai, dated 3rd July 2009, below Exhibit 23 in Regular Civil Appeal No. 6 of 2006, thereby rejecting the application filed by the present petitioner for appointment of court commissioner. 2. The respondents plaintiffs have filed a suit for declaration, that they are owner of 1 hectare 25 R. land from southern side in Gut No. 423. It is the contention of the plaintiffs, that the plaintiff no.2 had dug up bore well in his land. It was the contention of the plaintiffs, that the (3) defendant was obstructing the bore well and the pipe line. The learned trial Judge decreed the suit. The petitioner defendant was restrained from obstructing peaceful possession of plaintiffs over suit land and also restrained from obstructing peaceful enjoyment of bore well and pipe line of plaintiff no.2. Being aggrieved thereby, an appeal is also preferred by the present petitioner. In the said appeal, an application was filed by the present petitioner for appointment of court commissioner for finding out exact location of the bore well. The said application is rejected by the appellate court. Hence, the present petition. 3. Mr. S.V. Chandole, learned Counsel appearing on behalf of the petitioner, submits that the learned Judge of the appellate court has erred in rejecting the application, inasmuch as, he has not considered the merits of the matter. 4. It can be seen that the learned Judge of the appellate court has rejected the application on three grounds. The grounds are, firstly, that similar application was made by the petitioner before the trial court, which was rejected by it and the said order was not challenged by the petitioner, secondly, the application before the appellate court was made after arguments were heard on merits and it was done in order to prolong the proceedings and thirdly, there was only one bore well on the suit land and as such, it was not necessary to appoint court commissioner. (4) 5. No infirmity could be found with the approach adopted by the appellate court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 6. Hence, the petition is dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp5574