1 W.P.No.592.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.592 OF 2010 Baburao S/o Vitthal Shelke and others. ...PETITIONERS. VERSUS Pandurang S/o Rangnath Khose, and others. ...RESPONDENTS. ... Shri.B.S.Kudale,Advocate for Petitioners. Shri.K.B.Jadhvar,Advocate for Respondent Nos.1to3. Shri.S.B.Choudhari,Advocate for Respondent Nos.5 to 8. ... CORAM: K.K. TATED, J. DATE : 23rd AUGUST, 2010. PER COURT : 1. Heard learned counsel for the parties. 2. By this petition original defendant Nos. 1 to 4 and 10 to 13 challenges the order dated 27th April, 2009 passed by Joint Civil Judge Junior Division, Bhoom, below Exh.66 in Regular civil Suit No. 253 of 2002, under Order 26 Rule 9 of the 2 W.P.No.592.10 Code of Civil Procedure. 3. The respondent Nos. 1 to 3-original plaintiffs filed Regular Civil Suit No. 253 of 2002 in the Court of Civil Judge Junior Division, Bhoom for declaration as owner of the land bearing Survey No. 238 admeasuring 8 H.20 Ares, situated at Bhoom, Tq. Bhoom, for rectification in registered sale deed No. 595/1986 dated 14.07.1986 regarding Survey No.238 instead of 249 and for perpetual injunction against petitioners not to disturb or obstruct peaceful possession of the original plaintiffs over the suit land. 4. It is the case of the plaintiffs that they purchased 8H.20 Ares land from the petitioners by registered sale deed dated 14th July, 1986. Pursuant to the said transaction, they are in possession of the suit property. Thereafter, they learnt about mistake in respect of the Survey Number in the sale deed. For rectification of Survey Number in the sale deed and for injunction, 3 W.P.No.592.10 original plaintiffs filed Regular Civil Suit No. 253 of 2002 on 26th September, 2002. The petitioners-Original defendant Nos. 1 to 4 and 10 to 13 filed their written statement in the said suit on 2nd February,2007 and denied the respondents-original plaintiffs’ claim. 5. The respondents-original plaintiffs on 9th March, 2009 filed application under Order 26 Rule 9 of the Code of Civil Procedure for appointment of Court Commissioner, to make a local investigation, in Regular Civil Suit No. 253 of 2002. In the said application, respondents- Original plaintiffs state that they are in possession of the land as per sale deed and because of mistake in the sale deed about Survey Number it is necessary to direct the Taluka Inspector Land Records(“TILR” for short) to make a local investigation and submit its report about exact Survey Number of the land, which is in their possession. 4 W.P.No.592.10 6. The said application decided by the Joint Civil Judge Junior Division, Bhoom by impugned order dated 27th April,2009 and directed TILR Bhoom to inspect Survey No.238 and Survey No. 249 situated at Bhoom, after issuing notices to the parties and submit its report, whether boundaries mentioned in the sale deed at Exh.65 are of Survey No.238 or Survey No. 249. 7. Mr.Kudale,learned counsel appearing on behalf of the petitioners submits that order passed by the learned Joint Civil Judge Junior Division, Bhoom, below Exh.66 in Regular Civil Suit No. 253 of 2002 is contrary to the provisions of law and the material on record and therefore, the same liable to be quashed and set aside. He further submits that the learned trial Court failed to consider that the application is filed for appointment of Court Commissioner to ascertain whether land Survey No.238 or land Survey No.249 is in possession of the respondent Nos. 1 to 3- Ori. plaintiffs, as per sale deed and to ascertain 5 W.P.No.592.10 the boundaries of the Survey No.238 and Survey No. 249, that means the appointment of Court Commissioner is for collecting evidence, which is not permissible under law. He further submits that, Court Commissioner can not be appointed to ascertain the boundaries of the land and ascertain the party in possession of the land as it tentamounts to appointment of Court Commissioner for collecting evidence regarding possession and ascertaining the boundaries. 8. Per contra, Mr.Jadhavar, learned counsel appearing on behalf respondent Nos.1 to 3-Original plaintiffs submits that there is no dispute about the possession, because respondent Nos.1 to 3- original plaintiffs are in possession of the suit land, as per sale deed. There is also no dispute about area of the land, which is in their possession. He submits that in the sale deed dated 14th July, 1986 by mistake Survey Number is noted as 249 instead of Survey No.238. 6 W.P.No.592.10 9. He submits that taking advantage of this mistake the petitioners are started threatening the respondent Nos.1 to 3. Therefore, plaintiffs are constrained to file the suit for injunction and for rectification of Survey Number in the sale deed. 10. The learned counsel further submits that in the application below Exh.66, under Order 26 Rule 9 of the Code of Civil Procedure, the plaintiffs specifically state that they are in possession of the suit property. There is no dispute about the boundaries or area of the land. Only to ascertain Survey Number of the land, which is in their possession, they filed an application under Order 26 Rule 9 for appointment of Court Commissioner and to ascertain whether land which is in their possession is bearing Survey No. 238 or Survey No. 249. This does not be amount to collection of evidence. Therefore, there is no substance in the Writ Petition and same is liable to be dismissed. 7 W.P.No.592.10 11. I heard both the learned counsel at length. In the present case, respondent Nos. 1 to 3- original plaintiffs filed suit for injunction restraining petitioners from obstructing and disturbing peaceful possession in respect of 8H.20 Ares land, which is in their possession as per sale deed dated 14th July, 1986, for rectification regarding survey No.238 instead of Survey No.249. In the application below Exh.66, under Order 26 Rule 9, the respondent Nos. 1 to 3-Original Plaintiffs specifically state that they are in possession of the land and only to ascertain Survey Number of the land and which is in their possession, they require local investigation through Court Commissioner i.e. TILR. 12. It is to be noted that it is not the object of Order 26 Rule 9 of the Code of Civil Procedure to assist a party to collect the evidence, which the party itself can collect. It is correct that the Court should not appoint Commissioner for collection of evidence which the party can 8 W.P.No.592.10 collect. However, the Court may issue commission to ascertain the exact Survey Number of the land when it consider that this can be done by local inspection. In the present case, respondent Nos. 1 to 3-Original Plaintiffs categorically state that they are in possession of the land as per the sale deed dated 14th July, 1986. They are not disputing the area of the land, which is in their possession. They are also not disputing the boundaries of the land, which is in their possession. Their case is that to ascertain the exact Survey Number of the land, which is in their possession appointment of TILR as Commissioner is necessary. 13. On the other hand, learned counsel appearing on behalf of petitioners submits that appointment of Court Commissioner amounts to collection of evidence for the benefit of litigants. He submits that respondent Nos. 1 to 3 independently can prove their case by examining neighbourers of the suit property. It is not necessary to appoint 9 W.P.No.592.10 Commissioner for that purpose. He submits that Our High Court in the matter of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others reported in 2001(2) Mh.L.J.959 held that appointment of Commissioner empowering him to visit and inspect the spot being suit field and to submit report regarding actual possession of the suit land, this would amount to appointing Court Commissioner for collecting evidence regarding possession and same is not allowed in law. 14. I have gone through the authority cited supra, in which dispute about possession was there, whereas in the present case plaintiffs are not raising any dispute about possession of the suit land. Their grievance is only about ascertaining the correct Survey Number of the suit land. Therefore, that authority is distinguishable on facts. 15. It is to be noted that the respondent Nos 1 to 3 have claimed appointment of TILR, Bhoom to 10 W.P.No.592.10 see whether boundaries stated in the sale deed at Exh. 65 are of Survey No. 238 or Survey No. 249 and the trial Court by impugned order dated 27th April, 2009 specifically directed TILR Bhoom to inspect survey No. 238 and Survey No. 249 for submitting report whether boundaries mentioned in Exh. 65 are of Survey No. 238 or Survey No. 249. This is not collecting of evidence on behalf of the plaintiffs. 16. I agree with the view taken by trial Court. It is clear that under Order 26 Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation. The object of the local investigation is not so much to collect evidence which can be taken in Court, but to obtain evidence which from its peculiar nature can only be had on the spot. The cases of boundary disputes and disputes about the identity of land are instances, when a Court may order a local investigation under Order 26 Rule 9 of the Code of Civil Procedure. 11 W.P.No.592.10 17. In the above mentioned facts and circumstances, I do not find any cogent reason to interfere with the impugned order dated 27th April, 2009 passed by the Joint Civil Judge Junior Division, Bhoom below Exh.66 in Regular Civil Suit No. 253 of 2002, in exercise of extra ordinary writ jurisdiction under Article 227 of the Constitution of India. The Writ Petition stands dismissed with no order as to costs. Sd/- [K.K. TATED, J.] MTK