1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 8238 OF 2010 Sow Bismillabai Salar Patel & others .. PETITIONERS VERSUS Rudhrappa Gopalrao Kore & others .. RESPONDENTS Mr. P.R. Katneshwarkar, advocate for the petitioners. ===== CORAM : R. M. BORDE, J. DATE : 8 th OCTOBER, 2010. PER COURT : 1 An application tendered by the plaintiff in pending suit seeking appointment of Cadastral Surveyor for measuring the property and fixing area of plot has been allowed by the trial court in view of order passed on 14-6-2010. Said interim order is subjected to challenge at the instance of defendants in the instant writ petition. 2 Plaintiff presented suit being Regular Civil Suit no. 346/2003 claiming declaration of ownership and recovery of possession of plot no. 4 out of 2 survey no. 44. The suit was decreed by the trial court and a direction was issued to handover possession of the plot to the plaintiff. It was also further directed that it would be open for the plaintiff to secure measurement of the property through T.I.L.R. With a view to fix the location of the plot. Judgment and order passed by the trial court was subjected to challenge in Regular Civil Appeal no. 149/2007 at the instance of the defendants. Appeal came to be allowed and the judgment and decree passed by the trial court was set aside and the matter was remitted back to the trial court with a direction to decide the suit afresh. It was also directed by the first appellate court to the trial court to receive evidence in respect of location of the plot. 3 On remitting the matter back to the trial court, an application was tendered by the plaintiff for appointment of Commissioner to measure the land gat no. 44 to the extent of 2 H and 1 guntha as per the sanctioned lay out plan of Gram Panchayat of village Kanheri and also to direct the Commissioner to fix the area of the plot. The application was opposed by the defendants contending that it is an attempt to collect evidence for the parties and such an application shall not be approved by the court. Trial court, however, proceeded to allow the application. 3 4 I have perused the application as well as the impugned order passed by the trial court. It is contended by learned counsel for the petitioners / original defendants that it is for the plaintiff to establish his case and he cannot secure assistance of the court for fixing location of the property. It is also contended that during the continuance of the suit, a Commissioner was appointed for measuring the property and his report is placed on record. He has also been examined as witness no. 2 on behalf of the defendants. As such, it is not necessary to again appoint the Cadastral Surveyor. It appears that although witness no. 2 was appointed for measuring the property, the witness has deposed in his evidence that on the date prescribed for conducting measurement while he went to the spot, plaintiff could not show him the location of the plot and as such, he has prepared panchanama at exh. 51. He has also further deposed in his evidence that the area where the plot was stated to have been located was under cultivation and crop was standing thereon. Thus, it appears that the Commissioner appointed during the first round of litigation could not locate the property. In this view of the matter, it was appropriate for the trial court to appoint the Cadastral Surveyor for fixing the location of the disputed plot. Direction issued is also in consonance with the judgment of the first appellate court. In exercise of writ jurisdiction under Article 227 of the Constitution of India, no interference is 4 called for in the petition. Petition is devoid of substance hence stands rejected. 5 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp8238.10.odt