1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 2756 of 2011 Rameshwar Ashok Shelke ..VS.. Gram Panchayat and another - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S.R. Deshpande, Adv. for the petitioner. CORAM : SMT. VASANTI A. NAIK J. DATE : 16 th September, 2011. Heard. By this petition, the petitioner impugns the order passed by the trial court on 18.3.2011 rejecting an application filed by the petitioner for appointment of Court Commissioner under order 26 Rule 9 of the Code of Civil Procedure. The trial court was justified in rejecting the application filed by the petitioner seeking the appointment of the Court Commissioner. The petitioner wanted to prove that to the eastern side of the suit property gat no. 165 was situated and to the western side thereof a river was flowing. The trial court rightly held that a Commissioner cannot be appointed for collection of evidence merely because the petitioner had asserted a fact and the respondent had denied the same. The court held that the parties should lead positive evidence in regard to their case and it was not necessary to appoint a Court Commissioner. The judgment reported in 2004 (2) Mh.L.J. 722 (Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade) relied upon by 2 the counsel for the petitioner cannot be made applicable to the facts of this case as in the reported decision the court was considering the case of encroachment where there was dispute about the dimensions of the site. Since the order passed by the trial court is just and proper, the writ petition fails and is dismissed with no order as to costs. JUDGE Hirekhan