1 wp-7543-11 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7543 of 2011 Dattatray Ramchandra Sankulkar (deceased) through his heirs and legal representatives .. Petitioners Versus Shantaram Ramchandra Sankulkar (deceased) through his Legal heirs .. Respondents Mr. P. G. Karande for the Petitioners CORAM : R.M.SAVANT, J. DATE : 15th NOVEMBER, 2011 P.C. : 1 The above Petition takes exception to the order dated 5-5-2011 passed by the Learned District Judge-I, Khed, by which order the Application Exhibit-24 for appointment of Court Commissioner has been rejected. 2 The Petitioners are the original Plaintiffs whose suit bearing Regular Civil Suit No.70 of 2003 has been dismissed. The said suit was filed for permanent and mandatory injunction against the Defendant No.1 Shantaram Ramchandra Sankulkar. It was the case of the Petitioners that the Defendant No.1 unauthorisedly constructed a hut on an area 10 x 12 ft. in south-east corner of suit-field which was owned by them. 2 wp-7543-11 Per contra, it was the case of the Defendants that the suit field is jointly owned by them and the Plaintiff is in possession of the hut which is standing on 22 x 15 ft. area of the suit field. As indicated above, the said suit came to be dismissed by the Trial Court by Judgment and Order dated 5-3-2007 against which the Plaintiffs have filed an Appeal which is Regular Civil Appeal No.15 of 2007 in which the instant application Exhibit 24 came to be filed for appointment of Court Commissioner. The said application has been rejected inter alia on the ground that though the case of the Plaintiff is that the Defendant No.1 has encroached an area of 10 x 12 ft. at the time of filing of the suit. The Plaintiff has not chosen to file any measurement map /plan and, therefore, after the dismissal of the suit on merits, the appellants /plaintiffs cannot be permitted to fill up lacunae in their case by way of appointment of Court Commissioner, which can only be said to be for collecting evidence. The Trial Court has also relied upon the Judgment of this Court reported in 2001(2) Mh.L.J. 959, 2001 (1) ALL MR 653, 2001 (4) LJ- Soft 63, 2001(1) Bom C.R. 800, wherein it has been laid down that the Court Commissioner cannot be appointed for collecting evidence. 3 The Learned Counsel for the Petitioners seeks to rely upon a Judgment of the Learned Single Judge of this Court reported in 2009(4) Mh.L.J. 371 in the matter of Girish Vasantrao Bhoyar & Anr. Vs. Nimbaji Warluji Bambal wherein in the suit filed for removal of 3 wp-7543-11 encroachment, this Court observed that the appointment of the Court Commissioner was justified. 4 In the conspectus of the facts as narrated above, where the suit filed by the Petitioners has been dismissed and where at the trial stage no such steps were taken by the Plaintiffs for placing an agreed measurement map on record. In my view, the reasons given by the Trial Court for rejecting the application Exhibit-24, cannot be faulted with. No case for interdiction is made out. The Writ Petition is accordingly dismissed. (R.M.SAVANT, J.)