1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1289 OF 2010 VENKATRAO RANGRAO PATIL AND ORS ..PETITIONERS V/S MALLIKARJUN SANGRAM PATIL ..RESPONDENT ... Petitioners : Shri K.T.Shirurkar, Advocate for the petitioners. ... CORAM : S.B.DESHMUKH,J. Dated : 23.2.2010 PER COURT :- 1. Heard. 2. Petitioners are defendants in RCS No. 42 of 2009 pending in the court of learned Civil Judge J.D. Chakur. Copy of the plaint is not on record. Learned counsel for the petitioners submits that the suit is for declaration and perpetual injunction. It is contention of the plaintiff that he is owner of land Gut No.206 and petitioners are owners of land Gut No. 1. Learned counsel for the petitioners further concedes that both these lands are adjacent to each others. 3. Plaintiff had applied in the trial Court on 27.7.2009 for 2 appointment of the Taluka Inspector of Land Records ("TILR") as Commissioner to carry out the measurement, draw a map and submit a report showing the disputed way (Pandan). Said application is at Exhibit 37. Petitioners objected the said application. The trial court heard both the sides and allowed the said application with some directions on 8.12.2009. This order is subjected to challenge in this petition. 4. Learned counsel for the petitioners submits that the plaintiff is endeavouring to collect the evidence with the assistance of the Court machinery. The plaintiff, further according to him, came to the Court with shifting stands. At one point, plaintiff contends that disputed way (Pandan) runs through the land Gut No.206 owned by the plaintiff and at another point, he submits that the said disputed way is in between the lands of the plaintiff and defendants. Learned counsel for the petitioners submits that earlier one Advocate was appointed as Court Commissioner under Order XXVI Rule 9 of CPC at the request of the petitioners Said commission work was carried out and report has also been filed in the trial Court on 18.8.2009, accompanied by rough sketch map and panchanama. According to learned counsel for the petitioners, before filing of the suit also measurements were undertaken at the requests of the plaintiff and this is a third attempt on the part of the plaintiff to seek appointment of the Court Commissioner. Order passed by the trial Court, according to him is illegal. 3 5. Reply filed by the petitioners in the trial Court is on record at page No.15. Learned counsel for the petitioners points out paragraph No.3 of this reply. 6. Order passed by the trial Court records that the resolution of the controversy amongst the parties relating to location of the disputed way is important and significant. For this purpose, Court opined that the land Gut No.206 owned by the plaintiff and Gut No.1 owned by the petitioners needs to be measured by the expert. 7. I have considered the order passed by the court below so also submissions of the learned counsel for the petitioners. In my view, no case for exercise of extra ordinary jurisdiction by this Court has been made out. 8. In the result, Writ Petition stands dismissed in limine. No order as to costs. ( S.B.DESHMUKH, J.) ... akl