1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.439/2011 BHAGYAWAN KHOBRAGADE ..VS.. GRAM PANCHAYAT VAIRAGAD & ORS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri V.S.Kukday, advocate for the petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 28, 2011. By this petition, the petitioner impugns the order passed by the trial court on 23.9.2010 rejecting an application filed by the petitioner under order 26 rule 9 of Code of Civil Procedure for appointment of the Court Commissioner. The petitioner is the original plaintiff. A suit was filed by the plaintiff for declaration that the disputed land did not belong to defendant no.1 and the land was the property of the state government. The petitioner also sought a mandatory injunction directing the defendants to remove the fencing erected by them on the disputed way on 26.8.2008. It was the case of the plaintiff that the disputed way was an approach road to the college constructed by the petitioner. The case of the plaintiff was denied by the defendant no.1 and 2 while so denying it was also pleaded that there was an alternate way for approaching the college of the plaintiff. 2 In view of the pleadings of the parties, the plaintiff/petitioner filed an application for appointment of a Court Commissioner for local inspection of the property and also the strip of land involved in the suit. The plaintiff stated in the application that in view of the pleadings of the defendant no1. and 2 in regard to the passage it had become necessary to gauge the correct situation about the strip of land in dispute by appointing a Commissioner for local inspection. The application was strongly opposed by the respondents and the same was dismissed by the court by the impugned order dated 23.9.2010. The only submission made on behalf of the petitioner is that it was the case of the defendants that there was an alternate road to approach the college of petitioner and to consider whether there was an alternate way or not, it was necessary to appoint the commissioner for local inspection. On hearing the learned counsel for the petitioner and on perusal of the application for appointment of the Commissioner and the impugned order dated 23.9.2010, it appears that the trial court did not commit any error in rejecting the application for appointment of court Commissioner. The trial court, rightly held that it was necessary for the plaintiff to prove his pleadings that the suit passage was the only way for the ingress/outgress to the school/ college building or for the defendant to prove that there was an alternate way. Moreover, the petitioner had not 3 stated in the application for appointment of the Commissioner that the petitioner sought the appointment of the petitioner just to find out whether there was an alternate approach way to school/ college building. The court rightly considered the fact that a Court Commissioner cannot be appointed for collection of evidence and this was not a fit case for appointing the Commissioner for the spot inspection. There is no error, much less a jurisdictional error in the order passed by the trial court. The same cannot be interfered with in exercise of the writ jurisdiction. The writ petition is dismissed with no order as to costs. JUDGE SMP