1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.2317 OF 2010 Harishchandra Prabhu Bhalerao ..Petitioner V/s Nivratti Vitthalrao Narwade ..Respondent ......... Mr.Uday S. Malte, Advocate for petitioner. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 7th May, 2010. PER COURT : 1. By this petition, the petitioner challenges the order dated 29th July, 2009, rendered by learned Joint Civil Judge (J.D.)-2, Nanded on application (Exhibit-14) filed in Suit (R.C.S. No.66/2009) for appointment of Court Commissioner. By that order, the application was dismissed on the ground that the Court Commissioner has no power to ascertain encroachment alleged by the petitioner, and therefore, such appointment can not be made. 2. Heard learned counsel. 3. The petitioner is plaintiff and filed the suit alleging that the respondent was making construction of house property, whereby a part of his plot to the extent of 4 X 25 sq.ft. was being encroached. 2 The respondent/defendant is a retired Sanitary Inspector. It was alleged that if the construction is completed, it would cause multiplicity of litigation because portion of the petitioner's plot was likely to be encroached over by virtue of such construction. The petitioner, therefore, applied for appointment of Court Commissioner in order to inspect the spot, carryout measurement of the plots and locate whether, the construction was likely to cause encroachment over his property. 4. The purpose of appointing Court Commissioner was to locate actual measurement of the construction of the respondent as well as plot of the petitioner. There was no question of collecting any evidence by recording any statement or by giving any findings by the Court Commissioner. The Court Commissioner was required only to visit the disputed site and to carryout the measurements. The opinion of Court Commissioner will have to be verified by the Court after the report is received. The Court Commissioner can be appointed under Section 75 of Civil Procedure Code for the purpose of verification of fact situation at the spot. The learned Civil Judge seems to have erroneously assumed that the Court Commissioner has no power to ascertain encroachment alleged by the petitioner. The reasonings ascribed by learned Civil Judge is improper and untenable. 3 5. In the result, the Petition is allowed. The Impugned order is set aside. The Application be deemed as granted and the learned Civil Judge is directed to appoint Court Commissioner without any delay on such terms as may be deemed necessary, with specific directions about functions of the Court Commissioner and fees payable to him. Petition is disposed of accordingly. (V.R.KINGAONKAR) JUDGE gas/wp2317.10