1 WP 5275.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5275 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. V.M.Chate , Advocate for the petitioners. Mr. S.S.Thombre, Advocate for the respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE :14/09/2011 PER COURT : 1. The petitioner is the original plaintiff, who had filed Suit for removal of encroachment and possession in respect of an area of 40 ft. x 80 ft. 2. During the pendency of the Suit, the petitioner filed an application for appointment of Court Commissioner for measurement of land S.No. 53/8. The said application is rejected. Aggrieved thereby, the petitioner has filed the present Writ Petition. 3. Mr. Chate, the learned counsel for the petitioner 2 WP 5275.2011 submits that both the parties had applied for the appointment of Court Commissioner, still the Court has rejected the said application. According to the learned counsel, whenever there is a dispute regarding the encroachment, the same can be elucidated with the help of an expert, who would measure the land. The Court has not taken into consideration the said aspect while passing the impugned order. The learned counsel contends that as there are rival contentions, the appointment of Court Commissioner was necessary. 4. Mr. S.S. Thombre, the learned counsel for the respondent supports the order passed by the Court. 5. Whenever the issue arises about the encroachment or regarding the boundaries, then the Court can appoint the T.I.L.R. as Commissioner to measure the disputed properties along with adjoining lands. In the present case, the petitioner had applied only for measurement of land S.No. 53/8. According to the petitioner, there are various pot-hissas in land S.No. 53. Unless the measurement is carried out of the whole survey number/gut number along with its pot-hissa as per record, it would not be possible for the authority to come to the conclusion about the encroachment. But, as the said application was only for measurement of S.No. 53/8, I do not think that any error is committed by the trial court in rejecting the application. 3 WP 5275.2011 6. The parties are yet to adduce evidence. The parties would be at liberty to file fresh application for appointment of T.I.L.R. or any competent person as a Court Commissioner to measure whole survey number/gut number with its pot-hissas as per the record, which application the Court would consider on its own merits. 7. The Writ Petition is disposed of with the aforesaid observations. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 5275.2011 4 WP 5275.2011