1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW APPLICATION (ST)NO.29577 OF 2010 IN WRIT PETITION NO. 175 OF 2010 1] Somnath S/o Narayan Sonwane, Age 40 years,Occup. Agril., R/o Khamgaon, Tq. Phulambri, District Aurangabad. 1] Kailash S/o Narayan Sonwane, Age 35 years,Occup. Agril., R/o Khamgaon, Tq. Phulambri, District Aurangabad. ...APPLICANTS. VERSUS Laxman S/o Rama Katkar, Age 45 years,Occup.Agril., R/o Khamgaon,Tq.Phulambri, District Aurangabad. ...RESPONDENT. ... Shri.V.B.Garud,Advocate for Applicants. Shri.S.R.Dheple,Advocate for Respondent. ... CORAM: K.K. TATED, J. DATE : 28TH OCTOBER, 2010. PER COURT : 1. Heard learned counsel for the parties. By 2 consent of the learned Counsel for the parties, the matter is taken on board for hearing. 2. The Review Application preferred by the Original Defendants for reviewing the order dated 23rd August 2010, in Writ Petition No. 175 of 2010, by which his Writ Petition was dismissed. 3. In the present case, the Respondent-Original plaintiff filed Regular Civil Suit NO.194 of 2008 in the Court of Civil Judge Junior Division, Phulmabri for perpetual injunction restraining the defendants, their servants and agents from obstructing and interfering in peaceful possession over the Gut No. 470 admeasuring 6H=75 Ares. In the said suit, the applicants original defendants preferred an application Under Order 26 Rule 9 read with Section 151 of the Code of Civil procedure for appointment of Court Commissioner with following prayer: “Application be allowed and TILR be appointment for measurement 3 of land gut No. 371 and 470 of village Khamgaon, Tq. Phulambri, District Aurangabad and oblige. 4. On the said application Civil Judge Junior Division, Phulambri, District Aurangabad passed an order on 29th September, 2009 and allowed the said application. The operative part of the said order reads as under: “Application allowed. TILR Phulabmri is appointed as Court Commissioner to measure suit field Gut No.470 and 371 at the cost of defendants. Defendants is directed to deposit measurement cost in TILR office by making inquiry about measurement charges. On depositing of amount writ be issued to TILR for measurement. Till the completion of measurement defendants is restrained from alienating or making any work or construction over disputed portion of the suit field mentioned in plaint.” 5. Being aggrieved by the said order the 4 applicants-Original defendants preferred Misc. Civil Appeal No. 216 of 2009 in the Court of District Judge-2 Aurangabad. The said Misc. Civil Appeal was dismissed by District Judge-2 Aurangabad by order dated 5th December, 2009. 6. Being aggrieved by the order passed by the District Judge-2 Aurangabad, the applicants preferred Writ Petition No. 175 of 2010. In the said Writ Petition the applicants preferred Civil Application No. 8808 of 2010 for carrying out an amendment in the Writ Petition to the effect that: “8-A. The petitioners submits that, the petitioners have to substantiate his defence petitioner has made application to the TILR, Phulambri on 7.8.2009 and paid requisite fees for the measurement of his land i.e. Land gut no.371.” 8-B. The petitioners submit that, the T.I.LR. Phulambri by following the procedure and calling upon the panch measured the land of the petitioners in 5 land Gut no.371. The T.I.L.R. Phulambri by is report dated 15.4.2010 supplied the map to the petitioners. The map prepared by the T.I.L.R. shows that the petitioners having his land towards the southern side of Babra-Khamgaon road. The map prepared by the T.I.L.R. Phulambri is annexed herewith and marked as Exhibit-”F”. 7. After hearing both sides, this Court passed order dated 23rd August, 2010 and rejected Writ Petition on the ground that the TILR has already completed measurement and applicants paid costs in respect of measurement of Gut No. 470 also. 8. Mr. Garud, learned Counsel appearing for applicants-Original defendants states that actually the TILR completed measurement of Gut No. 371, only and he paid costs thereof. He further states that his client did not want to carry out measurement of Gut No. 470 and bear the expenses thereof. 6 9. Mr.Dhelpe, learned counsel appearing on behalf of respondent-Original plaintiff vehemently opposed the present Review Petition on the ground that the applicants-original defendants themselves made an application before the trial Court for appointment of TILR. At his instance only trial Court passed the order below Exh. 25, dated 29th September, 2009. 10. He further submits that the applicants intentionally failed to deposit the measurement charges in respect of Gut No. 470. Therefore, TILR did not carry out the measurement as per order passed by the Civil Judge Junior Division, Phulambri dated 29th September, 2009. 11. He further submits that when trial Court passed order at the instance of applicants there is no question of allowing applicants not to bear the costs of TILR for measurement of Gut No.470. 7 12. I heard both sides. It is true that, the trial Court passed order dated 29th September, 2009, on applicants’ application Under order 26 Rule 9 of the Code of Civil Procedure. Once the order is passed on his own application there is no question of modifying and or setting aside the order to the extent of payment of costs by the applicants-Original defendants in respect of measurement of Gut No. 470. 13. I do not find any apparent error in the order passed by this Court. The applicants themselves had invited impugned order passed by the trial Court and therefore there was no error on the part of trial Court in passing the said order. Hence, the Writ Petition was dismissed and therefore there is no error at all justifying the review. Hence, this application is liable to be rejected. 14. The learned counsel for the applicants seeks leave to apply to the trial Court for 8 modification of order dated 29th September, 2009. Liberty granted to the applicants to move trial Court for modification of order dated 29th September, 2009 below Exh. 25. The same to be decided by trial Court on its merits. 15. The Review Petition is disposed of accordingly. No order as to costs. Sd/- [K.K. TATED, J.] MTK