( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3034 OF 2008 1. Shrirang s/o Rajaram Mali (Shinde), R/o Eet, Tq. Bhoom, Dist. Osmanabad. 2. Dhondiba s/o Rajaram Mali (Shinde), R/o Eet, Tq. Bhoom, Dist. Osmanabad. PETITIONERS VERSUS 1. Balbhim s/o Eknath Mali (Shinde), R/o Eet, Tq. Bhoom, Dist. Osmanabad. 2. Namdeo s/o Balbhim Mali (Shinde), R/o as above. 3. Baliram s/o Balbhim Mali (Shinde), R/o as above. 4. Manik s/o Balbhim Mali (Shinde), R/o as above. 5. Anandrao s/o Balbhim Mali (Shinde), R/o as above. 6. Kachru s/o Masu Mali (Shinde), R/o as above. RESPONDENTS ..... Mr. S.S. Sayyad, advocate, holding for Mr. S.S. Kazi, advocate for the petitioners. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th July, 2009] PER COURT : 1. Rule. Rule made returnable forthwith and heard ( 2 ) finally. 2. By this petition, the petitioners challenge order dated 10-01-2008, rendered by the learned IInd Joint Civil Judge (J.D.), Bhoom on their application (Exh-74) filed in suit bearing R.C.S. No. 432/2000. Their application (Exh-74) was filed, seeking appointment of the Court Commissioner for carrying out the local investigation and measurement. The application came to be rejected. 3. The petitioners are original plaintiffs. They allege that they are lawful owners and possessors of land survey No. 409 to the extent of 62 Ares area as described in the plaint map. They indicated the said 62 Ares land by red colour and also asserted that the lands of the defendants are situated on southern side of their land. They further asserted that the defendants started digging a portion of the suit land on 19-02-2003 and thereby attempted to encroach over their land to the extent of 10 x 5 feet from western side. According to them, the defendants intended to construct a building on ( 3 ) the said portion. So, they sought appointment of the Court Commissioner for carrying out measurement of the land and to examine whether there was encroachment or not. The learned Civil Judge rejected the application for the reason that the pleadings of the petitioners/plaintiffs did not show as to from which side the encroachment was being done by the defendants. The learned Civil Judge further held that the intention of the petitioners was to collect the evidence through appointment of the Court Commissioner. 4. Heard learned counsel for the petitioners. The respondents did not appear though served. 5. The question is as to whether the request for appointment of the Court Commissioner is erroneously rejected by the trial Court. The trial Court seems to have erroneously held that the pleadings of the petitioners do not show the details about identity of their land. In fact, a rough sketch is attached with the plaint and the suit land is shown by red colour. Obviously, there is no vagueness in the pleadings of the ( 4 ) petitioners about identity of the property which they are claiming. The main intention of the petitioners was to get the land measured in order to verify the nature of encroachment. The application itself shows that the defendants attempted to carry out construction by causing encroachment over the suit land. 6. Mr. Sayyad seeks to rely on “Kashinath Chindhuji Shastri v. Haribhau Nathuji Bawanathade” 2004 (2) Mh.L.J. 722. 7. The purpose of appointment of Court Commissioner is basically to hold a scientific, technical or expert investigation as contemplated under section 75 (e) of the Code of Civil Procedure. The powers envisaged under Order-XXVI Rule-9 are derived from the main provision i.e. Section 75. Section 75 (b) would make it amply clear that the Court may issue a Commission in order to make a local investigation. The Commissioner cannot be, however, directed to record statements at the spot or to collect evidence. The Apex ( 5 ) Court in “Haryana Waqf Board v. Shanti Sarup and others” (2008) 8 S.C.C. 671, held that whenever there is a dispute of demarcation of the disputed land, it would be appropriate for the Court to direct an investigation by appointing Court Commissioner under Order-XXVI Rule-9 of the Code of Civil Procedure. This Court in “Kashinath s/o Ramkrishna Chopade v. Purushottam Tulshiram Tekade and others” 2005 (4) Mh.L.J. 471, held that the boundary dispute and dispute about identity of the lands are the instances where the Court should order a local investigation under Order-XXVI Rule-9 of the Civil Procedure Code. The legal position is quite well settled in this behalf. There is hardly any material on record to show that the appointment of Commissioner was sought for the purpose of collecting evidence. 8. The impugned order does not show valid reasons for rejection of the request for appointment of the Court Commissioner. The learned Civil Judge committed patent error while rejecting the application on flimsy ground that abuttals were not stated in the plaint. The ( 6 ) impugned order is, therefore, arbitrary and unsustainable. 9. In the result, the writ petition is allowed. The impugned order is quashed. The application (Exh-74) be deemed as granted and the learned Civil Judge is directed to appoint the Court Commissioner as sought by the petitioners, if appropriate fees is deposited by the petitioners and shall call for the report as regards measurement of the petitioners’ land alongwith the adjoining land of the respondents in order to verify whether there is encroachment on land of the petitioners. Rule is made absolute accordingly. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP3034-08