1 wp 6945.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6945 OF 2011 1. Ravi S/o Ganpatrao Madrewar, Age : 28 Years, Occu. : Business & Agril., R/o Madrewar Colony, Ahmedpur, Dist. Latur. 2. Rajeev S/o Ganpatrao Madrewar, Age : 25 Years, Occu. : Service & Agril., R/o Madrewar Colony, Ahmedpur, Dist. Latur. 3. Sarika W/o Vikram Kandkurte, Age : 22 Years, Occu. : Household, R/o Near Gandhi Chowk, Chikhalwadi Corner, Nanded. 4. Smt. Shardabai W/o Ganpatrao Madrewar, Age : 49 Years, Occu. : H.H. & Agril., R/o Madrewar Colony, Ahmedpur, Dist. Latur. .. Petitioners Versus 1. Bhimashankar S/o Narayan Gadewar, Age : 58 Years, Occu. : Business, R/o Behind S. T. Depot, Ahmedpur, Tq. Ahmedpur, Dist. Latur. 2 wp 6945.11 2. Sow. Hemlata W/o Bhimashankar Gadewar, Age : 48 Years, Occu. : H.H. & Agril., R/o Behind S. T. Depot, Ahmedpur, Tq. Ahmedpur, Dist. Latur. 3. Avinash S/o Madhavrao Patil (Bolegave), Age : 50 Years, Occu. : Contractor, R/o Lingayat Galli, Ahmedpur, Dist. Latur. 4. The Chief Officer, Municipal Council, Ahmedpur, Tq. Ahmedpur, Dist. Latur. 5. The Talathi, The Talathi Office of Ahmedpur Town, Tq. Ahmedpur, Dist. Latur. 6. The Sub Registrar, The Sub Registrar's Office, Ahmedpur, Tq. Ahmedpur, Dist. Latur. 7. The Manager, Osmanabad Janta Sahkari Bank Ltd., Branch Ahmedpur, Dist. Latur. .. Respondents Shri A. H. Kasliwal, Advocate for Petitioners. Shri V. D. Salunke, Advocate for the Respondent No. 3. Shri N. B. Patil, A.G.P. for Respondent Nos. 5 and 6. Shri A. N. Irpatgire, Advocate for the Respondent No. 7. 3 wp 6945.11 CORAM : S. V. GANGAPURWALA, J. DATE : 19TH DECEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The petitioners have filed a suit for mandatory and perpetual injunction. The petitioners have claimed relief of removal of temporary tin shed said to be installed by the defendant Nos. 1 to 3. During the pendency of suit the present petitioners moved an application for appointment of District Inspector of Land Records and Town Planner as Court Commissioner for the purpose of joint measurement and the location of the spot of land Sy. No. 81/1/1 and land Sy. No. 81/1/5. The said application is rejected. Aggrieved thereby present petition is filed. 3. Shri Kasliwal, the learned counsel for petitioners submits that to eradicate the dispute as to location of the exact site the joint measurement of both the lands i. e. Sy. No. 81/1/1 and land Sy. No. 81/1/5 is required to be done. That would assist the Court. 4 wp 6945.11 4. Shri Salunke, the learned counsel for the respondent No. 3 opposes the petition and submits that there is no need to carry out the measurement. The land Sy. No. 81/1/5 is measured. The lands are respectively measured by both the parties and, therefore, fresh measurement is not necessary. The learned counsel contends that the father of petitioner Nos. 1 to 3 and husband of petitioner No. 4 has sold the entire property and no property remained with the petitioners and no purpose would be served by appointment of Court Commissioner. The learned counsel submits that, the Court below has properly taken into consideration this aspect and rightly rejected the application. The learned counsel further submits that the application Exhibit 5 for temporary injunction was filed and after two years the present application is given. The plaintiffs/petitioners want to collect evidence for arguing Exhibit 5. The learned counsel relies on the judgment of learned Single Judge of this Court in a case of Vij Kamgar Sahkari Pat Sanstha Vs. Ramkrushna Dhondiram and others reported in 2009 MCR 464. 5. With the assistance of learned counsel I have gone through the order and the pleadings. At this stage, I am not required to decide about merits of the contentions of the parties. The suit is also for mandatory injunction i. e. removal of tin shed. In which 5 wp 6945.11 area the tin shed is situated would be required to be concluded by the Court. The joint measurement would assist the Court in coming to the just conclusion. It is not that the suit is only for perpetual injunction. The Apex Court in a case of Hariyana Wakf Board Vs. Shanti Sarup and others reported in 2008 (8) SCC 671 has held that in cases where the dispute is about location and the boundaries, it is desirable to appoint the Court Commissioner and measure the land. 6. In the light of the above, the impugned order is quashed and set aside. The application Exhibit 111 for appointment of Court Commissioner is allowed. The Trial Court shall appoint the competent T. I. L. R. or any such persons as Court Commissioner to measure the land Sy. No. 81/1/1 and land Sy. No. 81/1/5 according to the record and the pleadings of the parties. The petitioners/plaintiffs shall bear the expenses of measurement. Rule is accordingly made absolute in above terms, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11