1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5126 OF 2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. A.S.Lomte, Advocate for Petitioner. Mr. S.T.Veer, Advocate for Respondent nos. 1 & 2. ........................... [ CORAM : K.K.TATED, J. ] DATE : 23/09/2009. PER COURT : 1. Heard learned counsel for petitioner and learned counsel for respondents. 2. By this Writ Petition under Articles 226 and 227 of the Constitution of the India, petitioner/original plaintiff is challenging the Order dated 6/5/2009 passed by Civil Judge (J.D.), Jintur below Exh. 32 in R.C.S. No. 9 of 2009, allowing respondents/original 2 defendants' application under Order XXVI Rule 9 of the Code of Civil Procedure for appointment of Commissioner for spot inspection. It is the case of the petitioner that he filed R.C.S.No. 9 of 2009 against respondents/original defendants for perpetual injunction restraining them from disturbing petitioner's possession in respect of 1 H. 9 R. of land from G.No. 168 situated at Jamb (Bk) Tanda, Tq. Jintur. In the said Suit, petitioner preferred application below Exh. 5 for injunction on 4/2/2009. Thereafter, immediately, the respondent/original plaintiff filed application under Order XXVI Rule 9 of the Code of Civil Procedure on 6/5/2009 for spot inspection of the disputed land as well respondents' land. Said application was allowed by trial Court. The learned counsel appearing on behalf of petitioner mainly opposed the said application on the ground that respondents want to prolong the hearing of application below Exh. 5. The said contention is not acceptable because the trial Court recorded in its Order dated 6/5/2009 that respondent/original defendant on their own, made a statement before trial Court that they 3 will not interfere and/or disturb the petitioner's possession in respect of the suit property till the hearing and final disposal of application below Exh. 5 dated 4/2/2009. 3. In any case, petitioner's contention is that the respondent is trying to encroach on their land. Therefore, to find out the exact boundaries of petitioner's land, it is necessary to appoint court commissioner. The learned counsel appearing on behalf of petitioner relied on unreported Judgment of this Court (Justice Mr. R.K.Deshpande) dated 27/4/2009 in Writ Petition No. 166 of 2009. In this case, the original defendant filed application below Exh. 19 in Spl. Civil Suit No. 206 of 2008 for appointment of Commissioner and same came to be dismissed by Order dated 23/12/2008. This Court also dismissed Writ Petition No. 166 of 2009 on the ground that original defendant in that case wants to prolong the hearing of injunction application. 4. The facts in this case and the facts of the case in hand are altogether different. In the present case, 4 the respondent/original defendant on their own already made statement before the trial Court that till the hearing and final disposal of application below Exh. 5, they will not disturb the petitioner's possession in respect of suit property. To find out the exact boundaries of the suit land, it is necessary to appoint Court Commissioner. 5. Considering these facts, I do not find any substance in the present Writ Petition to interfere the impugned order passed by trial Court dated 6/5/2009. Writ Petition dismissed. No order as to costs. [ K.K.TATED ] J UDGE knp/WP5126.09