-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2338 OF 2003 IN SUIT NO. 997 OF 1982 George David Pereira (since deceased through L.Rs.) ..Plaintiff. Versus William David Pereira. ..Defendant. Mr. P. R. Naidu for the plaintiff. Mr. Y. V. Divekar i/b Divekar & Co., for the defendant. Mr. Kishore H. Parker – Commissioner. Section Officer, Court Receiver is present. Mr. Nitin Muley for agent. Coram : R. V. MORE, J. Date : March 11, 2010. P. C. : 1. Heard learned counsel for the respective parties. This notice of motion is taken out by the plaintiff to discard the Report dated 25th April, 2003 submitted by the Commissioner - Mr. Kishore H. Parkar and further direction to appoint another Commissioner-cum-Valuer-cum-Surveyor for implementation of preliminary decree dated 3rd May 2001. 2. This Court on 3rd May 2001 passed preliminary decree in the above suit whereby it was declared that the plaintiff has half share in the suit property described in paragraph no.1 of the plaint and as shown in the map annexed to the plaint and he is entitled to partition by metes and bounds. The Court also directed that the partition by metes and bounds shall be effected as per report of the Commissioner. -: 2 :- 3. In pursuance of the preliminary decree, this Court passed further order dated 30th January 2003 directing the Prothonotary and Senior Master of this Court to appoint Commissioner – Surveyor as per the order dated 3rd May 2001 and accordingly Prothonotary appointed one Mr. Kishore Parekar, Architect and Government Valuer as Court Commissioner to submit the report. The said architect and Government valuer after intimation to the parties visited the suit property and thereafter has submitted his report. 4. The Report discloses that on account of encroachment there is no direct access to front and rear portions of the suit plot bearing No.G-12 and therefore partition by metes and bounds cannot be effected. The Commissioner alongwith the report has also annexed hand-sketch map of the suit property showing the encroached portion in red-hatched lines. 5. Mr. Naidu, learned counsel for the plaintiff disputed this report and has filed this notice of motion for the reliefs mentioned above. During the course of arguments, Mr. Naidu submitted that the encroachment which is shown in red-hatched lines in Commissioner’s Report is already removed by the Corporation subsequent to the filing of the report by the Commissioner. He further submitted that in view of the removal of the encroachment there is no difficulty in making partition by metes and bounds. Learned counsel for the defendant submitted that he has no instructions whether the encroachment is removed or not. 6. Mr. Kishore Parkar, Commissioner is personally present in the Court. -: 3 :- He submitted that when he visited the suit premises, encroachment was there on the suit plot which blocked the access to the front and rear portions of the suit plot and if the said encroachment is removed he would like to visit the suit premises again and submit the fresh report alongwith map. In these facts and circumstances, the above notice of motion is disposed of by passing following order. : O R D E R : (1) The Court Commissioner Mr. Kishore Parkar, Architect and Government Valuer is directed to visit the suit premises again. He shall ascertain whether the encroachment mentioned in his earlier report is removed by the Corporation or not. If the said encroachment is removed, he shall submit fresh report suggesting partition by metes and bounds alongwith sketch map and photographs of the suit property. (2) The Court Commissioner shall give the specific report whether the suit premises is divisible or not in accordance with the relevant provisions of the Bombay Municipal Corporation Act. (3) The Court Commissioner shall visit the suit premises after giving advance intimation to the plaintiff and defendant. (4) Let this exercise be done within the period of eight weeks from today. (5) The Cost and expenses of the Court Commissioner shall be borne by the plaintiff and defendant equally. (R.V. MORE, J.)