1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.7973 OF 2009 Nanibai Umaji Jagtap & others ....Petitioners. Versus Smt. Sitabai Mahadu Jagtap & another ....Respondents. Shri. S.D. Kulkarni, Advocate for the petitioners. Shri. S.P. Chapalgaonkar, Advocate for the respondent Nos. 1 and 2. CORAM : R.M. BORDE, J. DATE : 18th March, 2010 ORAL ORDER : 1. Interlocutory order passed by the trial Court on 1st of September 2009 in Regular Civil Suit No. 26/2006 in respect of measurement of property by the T.I.L.R./the Court Commissioner and submitting the report thereof, is a subject matter of challenge in this petition. 2. The learned counsel appearing for the petitioner has vehemently contended that the directions issued by the trial Court are in violation of orders passed by High Court earlier in dealing with appeal from order No. 5/2006. It is contended that while dealing with appeal from order, 2 the High Court has remitted the matter back to the trial Court while maintaining the directions contained in the operative order passed by the first appellate Court, except the direction contained in Clause 5 was set aside. It was directed to the trial Court to appoint Court Commissioner as per the directions of the lower appellate Court and evidence of the said witness was required to be recorded. The trial Court was supposed to record its findings based on the evidence and forward the record along with its findings to the first appellate Court. It is contended that on earlier occasion, the Commissioner was appointed and he has tendered his report and map and therefore, there was no need for seeking appointment of Court Commissioner for re-measuring the property once again. 3. Perused the order passed by the trial Court. The trial Court has recorded in para 5 of the judgment that the cadastral surveyor has not filed detailed report along with map. It is also not clear, on perusal of map, whether or not he has shown the land belonging to plaintiff and also other self-acquired land of plaintiff and the Court found that there are many defects in the measurement conducted by the cadastral surveyor and there is absolutely no clarity in the map. The trial Court, therefore, found it difficult to consider the evidence in the form of report of the cadastral surveyor and the map. There appears to be difficulty in the way of trial Court in appreciating the evidence and dealing with the report based on such measurement. In such circumstances, the trial 3 Court has rightly exercised the powers, permitting the T.I.L.R. to re-measure the property and submit fresh report. In such circumstances, inference, therefore, cannot be drawn that the trial Court has travelled beyond directives issued by the High Court while dealing with appeal from order. 4. In exercise of extraordinary powers under Article 227 of Constitution of India, no interference is called for at the interlocutory stage of the proceedings. There is no merit in the petition. The petition, therefore, stands rejected. [ R.M. BORDE, J. ] ssc/wp7973.09