wp4542.11.odt 1/2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.4542/2011 Subhash Ekanathrao Mohod -vs- Mukund Eknathrao Mohod and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri Alaspurkar, counsel for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : 15.09.2011. On hearing the learned counsel for the petitioner and on perusal of the impugned order dated 28/06/2011, it appears that the trial Court was justified in rejecting the application filed by the petitioner for appointment of commissioner as the petitioner was in fact seeking the appointment of the commissioner for an investigation as to which of the parties i. e. the plaintiff or the petitioner was in possession of a portion of the suit property. Since it is a well settled position of law that a commissioner cannot be appointed for ascertaining as to which of the party is in possession of the property, the Court was justified in rejecting the application filed by the petitioner. The judgment reported in 2003 (Supp. 2) Bom.C.R. 329 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case, as in the wp4542.11.odt 2/2 reported decision, the Court was dealing with a case of encroachment and not of partition. The writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE