1 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 494 OF 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. Surel S. Shah for the petitioner. Mr. Rupesh K. Bobae for respondent no.1. Mr. Sandeep S. Salunkhe for respondent nos.3 to 5. CORAM : D.G. KARNIK, J. DATE : 18TH JUNE 2010 P.C. : 1. Heard learned counsel for the petitioner, respondent no.1 and respondent nos.3 to 5. None present for the respondent no.2 despite service. 3. Rule, returnable forthwith. By consent, the petition is taken up for final hearing. 2 4. The petition is directed against an order dated 2nd September 2009 filed by the petitioner for referring the matter to the government surveyor, i.e. T.I.L.R. for measurment. 5. The petitioner claims to be the owner of the property bearing gat no.562/1A/2B2. The respondents appear to be neighbouring owners owning land bearing gat no.563 (part) situate on the eastern side of the petitioner’s property. The petitioner filed a suit for injunction restraining the respondents from entering upon his property, and committing any encroachment thereon and from disturbing his possession. It appears that there is a dispute as to the location and extent of the property belonging to the petitioner. The petitioner therefore made an application to the Court for appointment of a Court Commissioner for measurement of the land. By filing their say, the respondent nos.1 to 3 and 5 gave no objection for appointment of 3 T.I.L.R. as Court Commissioner for measurement of the petitioner’s land at his cost. Despite the consent, the learned Judge rejected the application. Hence, this petition. 6. Before me also, counsel for the respondents repeat that they have no objection for measurement of the petitioner’s land. However, they have an objection for measurement of their land and they had never given consent for measurement of their land. In view of the consent given by the respondents in the trial court as well as before this Court for measurement of the petitioner’s land at his own cost, the writ petition deserves to be allowed. 7. In the circumstances, Rule is made absolute and the impugned order is set aside. The T.I.LR. is appointed as a Court Commissioner to measure the petitioner’s land subject to the petitioner paying costs of measurement within the time to be specified by 4 the trial court. The trial court may pass necessary orders for giving effect to this order. (D.G. KARNIK, J.)