1 wp 5742.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5742 OF 2011 1. Manwarkhan S/o Nimankhan Pathan, Age : Major, Occu. : Agril., 2. Durabkhan S/o Nimankhan Pathan, Age : Major, Occu. : Agril., 3. Baizatkhan S/o Nimankhan Pathan, Age : Major, Occu. : Agril., 4. Naushadbi D/o Nimankhan Pathan, Age : Major, Occu. : Agril., All R/o Syedbada, Erandol Tq. Erandol, Dist. Jalgaon. .. Petitioners Versus Eknath S/o Adhar Patil, Age : 40 Years, Occu. : Agril., R/o Athawdebazar, Erandol, Tq. Erandol, Dist. Jalgaon. .. Respondent Shri N. E. Deshmukh, Advocate for the Petitioner. Shri V. B. Patil, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH DECEMBER, 2011. 2 wp 5742.11 ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The dispute is with regard to the alleged way. The present respondent filed an application for appointment of Court Commissioner. The Trial Court allowed the application and appointed an advocate as a Court Commissioner to verify the suit site, to submit the report and the map. From the application for appointment of Court Commissioner it is manifest that there are various gut numbers involved. 3. Shri Deshmukh, the learned counsel for petitioners submits that the Commissioner cannot be appointed for collection of evidence. For the said purpose the learned counsel relies on two judgments of the learned Single Judge of this Court in a case of Sushila Dhanbaji Kadu Vs. Birju Mangal Pache and others reported in 2006 (5) Bom. C. R. 859 and Sanjay Namdeo Khandare Vs. Sahebrao S/o Kachru Khandare & ors. reported in 2001(1) Bom. C. R. 800. The learned counsel contends that even otherwise an advocate would not be in a 3 wp 5742.11 position to know the exact location of the properties as is given. 4. Shri Patil, the learned counsel submits that to appoint the Court Commissioner or not is the discretion of the Court. Even otherwise, to elucidate the matter in dispute the appointment of Court Commissioner is necessary. 5. With the assistant of learned counsel I have gone through the pleadings, the application and the order. To appoint the Court Commissioner or not is the discretion of the Court. If the Court feels the appointment of the Court Commissioner is necessary to elucidate the matter in dispute in that circumstance the Court Commissioner can be appointed. No doubt, elementary rule is that it cannot be appointed merely to collect the evidence. At the same time, the nature of dispute is also required to be considered. An advocate would not be in a position to draw a map. As he would not be in a position to know the gut numbers and the situation of the gut numbers. In this case an advocate would not be of any assistance. 6. At this stage, the learned counsel for both the parties agree that if an expert is appointed that would assist the Court in real 4 wp 5742.11 manner. 7. In the result, though, I am not quashing and setting aside the order of appointment of Court Commissioner, still the order to the extent of appointing an advocate as Court Commissioner is set aside. Instead the Trial Court shall appoint an expert from the Land Records Office as Court Commissioner who shall go on the spot, inspect the situation of the properties in the matter as appearing from the pleadings of the parties and record of his office. He shall submit the report and map for the purpose as stated in the application for appointment of Court Commissioner. The charges of the said expert shall be borne by the defendant. Rule is accordingly made absolute in above terms. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11