1 W.P.6820.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6820 OF 2009 WITH CIVIL APPLICATION NO. 15590 OF 2010 Ramdas S/o Fakira Shinde, Age: 50 Years,Occup.: Agril., R/o Padhegaon, Tq. Kopargaon, District Ahmednagar. ...PETITIONER. VERSUS Ghanshma S/o Babanrao Chitnis, Age :48 Years,Ooccup.: Agril., R/o Padhegaon, Tq. Kopargaon, District Ahmednagar. And others. ...RESPONDENTS. Shri.C.K.Shinde,Advocate for Petitioner. Shri.S.S.Chapalgaonkar,Advocate for Respondent Nos.1 to7. CORAM: A.V.NIRGUDE, J. DATE : 30TH MARCH, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This Writ Petition challenges the order dated 27th July, 2009, passed by the learned Civil Judge Senior Division, Kopargaon, on Exh.36 in Regular Civil Suit No. 45 of 2007, in which petitioner is the plaintiff. The petitioner-plaintiff filed this application for appointment of Taluka Inspector Land Records (for short “TILR”) as Court Commissioner for taking measurement of the suit land. 2 W.P.6820.09 3. The petitioner-plaintiff has filed this suit for permanent injunction, for preventing the respondents-defendants from using part of his agricultural land on the Northern side, as cart way. The litigation on this point went on between the parties, before the Revenue Courts for quite some time. The petitioner-plaintiff, it seems did not succeed there and so the suit is filed. 4. After recording the deposition of some witnesses, including petitioner-plaintiff himself, he made present application. The learned Judge of the trial Court rejected this application on the ground that such application would amounts to collecting evidence through Court Commissioner. He placed reliance on the judgment of this Court in the case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others reported in 2001(2) Mh.L.J.959. 5. Mr. Shinde, learned counsel for the petitioner-plaintiff placed reliance on the judgment of learned Single Judge of this Court in the case of Kashinath S/o Ramkrishna Chopade Vs. Purushottam Tulshiram Tekade and others reported in 2005(4) Mh.L.J.471. The learned Judge while writing that judgment placed reliance on certain passages of the Judgment of the Supreme Court, in the case of Ram Kishore Sen and others Vs. Union of India, reported in AIR 1966 SC 644. The facts situation of the case before the learned Single Judge was different. There 3 W.P.6820.09 was boundary dispute of urban property and plaintiff did not file any documentary evidence coming from Revenue/City Survey departments. He placed had produced a map, which he himself created. Since, such map could not be admitted in evidence in view of section 83 of the Evidence Act, the learned Judge thought it fit -in the facts situation of that case- that the disputed property should be directed to be measured through Government Surveyor. The judgment of the learned Single Judge would not apply to the facts of this case. 6. The dispute regarding alleged encroachment or attempt of encroachment by the respondents-defendants has been going on for quite some time. This is in respect of an agricultural land. It is the case of the petitioner-plaintiff that, this land was recently given to him as Government grant. It is his case that, when the land was given to him, measurements were made and the boundaries were marked with Stone Pegs etc.. It is also his case that, there exists no cart way on the Northern boundary of his land. He, even, placed reliance on the village map to support his case. In such situation, the petitioner-plaintiff had ample opportunity to get his land, adjoining lands and area surrounding it, measured from TILR. Such measurement could have been undertaken in presence of both the parties. The petitioner- plaintiff had an ample opportunity to do so. Assuming that the petitioner - plaintiff was in hurry to come to the Civil Court for obtaining an order of temporary injunction, soon 4 W.P.6820.09 after he obtained such order, he could have undertaken task of getting lands measured through joint measurement etc. If this was not done, the petitioner-plaintiff, it seems, has lost such opportunity to get joint measurement done. 7. The judgment of the learned Single Judge in the case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others, supra, is based on slightly different facts, but even there the party who sought appointment of Court Commissioner tried to collect the evidence to support his case. Analogy to that extent can be drawn to the facts of this case. The petitioner-plaintiff has already led part of his oral evidence, his documents are there on record. Now, it seems that he is not certain about his case. He, probably because of such apprehension has made present application. 8. It is, thus, clear that the petitioner-plaintiff is also trying to collect evidence with the help of the order of appointment of Court Commissioner. In my view, such attempt is not permissible. It would not be out of place to suggest to the petitioner-plaintiff that he would be benefited, if he would withdraw the present suit with liberty to file fresh suit, on the same cause of action. In the meantime, he would get opportunity to get lands measured through joint measurement. Of course, this suggestion shall not be understood as direction to the petitioner-plaintiff. He is liberty to continue his suit as he wants, but the petition 5 W.P.6820.09 should fail. Thus, the Writ Petition stands dismissed. 9. In the light of dismissal of Writ Petition, nothing survives for consideration in the Civil Application No.15590 of 2010 for stay, same stands disposed of accordingly. Sd/- [ A.V.NIRGUDE, J.] MTK ok