1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7452 OF 2008 Marathwada Shikshan Prasarak Mandal Beed and others ...Petitioners Versus Prakashchandra s/o Ramprasadji Attal and others ...Respondents ..... Mr. A.L. Tikle h/f Mr. V.D. Salunke, advocate for the petitioners Mr. V.G. Gangapurwala h/f Mr. B.A. Darak for respondents 1 to 4. ..... CORAM: S. S. SHINDE, J. DATED: 11TH AUGUST, 2009 PER COURT:- 1 This writ petition is filed challenging the order dated 4.10.2008 below Exh.25 in R.C.S. No. 335 of 2007 passed by the learned C.J.S.D. Beed. It is not necessary to go into the facts of the case. 2. Learned counsel appearing for the petitioners submitted that the suit filed by the respondents herein was not for declaration. In case of suit for declaration the plaintiff has to prove that there is 33 ft road then only application can be filed to appoint the Court Commissioner to enquire whether there is any encroachment. It is further submitted that 2 the suit filed by the respondents is for perpetual injunction unless the plaintiff shows possession over the suit plot, no court commissioner can be appointed. It is further submitted that the public road is passing through the land of the petitioner. It is further submitted that further adjudication of the suit on the report of the T.I.L.R. is irrelevant. Learned counsel further submitted that it was absolutely not necessary to pass impugned order. Learned counsel invited my attention to the pleading of the petition, annexures thereto and has submitted that this petition deserves to be allowed. 3 Learned counsel appearing for the respondents submitted that the impugned order dated 4.10.2008 is acted upon and the T.I.L.R. has already submitted his report. Therefore, this petition has become infructuous. Learned counsel further invited my attention to page 54 of the compilation and submitted that the T.I.L.R. filed report on 7.2.2009 and objecting the said report the present petitioners have filed their application on 20.2.2009. Learned counsel further invited my attention to the contents of the application filed by the respondents and submitted that the impugned order passed by the trial court was perfectly justified and no interference is called. Learned counsel for the respondents has placed reliance on the judgment of this Court in the case of Girish Vasantrao Bhoyar and Anr Vs. Nimbaji Warluji Bambal, reported in 2009 (4) All M.R. 761 3 and more particularly to para 5 of the said judgment and submitted that the impugned order cannot be faulted with since the said order was passed appointing the court commissioner to measure the land and , such inquiry is permissible. 4 I have heard learned counsel appearing for the petitioners and the learned counsel for the respondents. It is not disputed that in pursuance to the order dated 4.10.2008 the T.I.L.R. was appointed and he has submitted his report. It is also not disputed that pursuant to the submission of report by the T.I.L.R. The petitioner has filed its say objecting the said report. At page 55 which is Exh. R-3 to this compilation is application filed by the petitioner before the Court below, in which it is prayed that Superintendent of Land Record, Beed may be reappointed as Court Commissioner and it is not in dispute that the said application is pending before the trial court for adjudication. 5 This Court, by order dated 15.6.2009 granted ad interim relief in terms of prayer clause “D” thereby staying further proceeding in the suit. It is not in dispute that at that time the respondents were not heard. 6 Taking into consideration the fact that the impugned order is already acted upon, the T.I.L.R. has submitted his report and the present petitioners have also filed their objections to the report of the 4 T.I.L.R. and there is application filed by the petitioners for reappointment of D.I.L.R. is pending before the trial court, it is not necessary to go into the merits of the matter and same would be futile exercise. 7 When the impugned order itself has been acted upon, it may be difficult to grant relief in the petition. Therefore, leaving all contentions open, which are raised in this petition, to be agitated before the trial court, this writ petition is dismissed. Ad interim relief stands vacated. Dismissal of this petition will not come in the way of the petitioner while agitating their case before the trial court including application pending for reappointment of Court Commissioner. *****