1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 8709 0F 2009 *** Subhash S/o Hanumanta Gaikwad and another Versus Jagannath S/o Tulshiram Gaikwad (Died) through L.Rs. and another. *** 1. Heard learned counsel for the Petitioner. 2. This petition is filed by the legal heirs of deceased defendant Nos.1 and 2. 3. The present Petitioners have filed application for appointment of Court Commissioner under Order 26 Rule 9 of the Code of C.P.C. read with Order 39 Rule 7 of the Code of Civil Procedure. This application is filed by the Petitioner in Regular Civil Suit No.79 of 2001. Copy of the application is on record, Exhibit-B (page16). This 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. application was opposed on behalf of the Respondent/ original plaintiff. The trial Court, after hearing the parties, rejected the application. The trial Court recorded finding that in the suit for declaration and perpetual injunction, dispute amongst the parties, is pertaining to actual possession of the suit property. The trial Court opined that such dispute cannot be resolved by appointing Court Commissioner. It is a matter of evidence. Counsel for the Petitioner took me through the application filed by the Petitioner for appointment of Court Commissioner. In para 4 of the application, it has been stated that the petitioners have carried out iron fencing (barbed wire fencing) in the 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. field 1 Acre 10 Gunthas out of the land Gat No.11. It has been further stated in this para 4 that there are houses of Defendant No.1 and his brother. They are residing in those houses. For this purpose, for elucidation of this issue, the defendants/ petitioners have sought appointment of Court Commissioner. According to the counsel for the petitioner, this cannot be said to be an attempt on the part of the Petitioner to collect evidence. 4. I have given my anxious consideration to the submissions made by the learned counsel for the Petitioner. I have also perused the order passed by the trial Court. The trial Court, in its reasoned order, has opined that it is not a case of alleged 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. encroachment. Issue of possession needs to be decided on the basis of the material brought on record. I see no case for invocation of extraordinary jurisdiction. 5. Writ petition stands dismissed in limine. No costs. [S.B.DESHMUKH, J.] Dated:04/01/2010. ans/8709