1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 1078 OF 2010 Vilas S/o Govindrao Kolekar, Age: 38 years, Occu.: Agri., R/o. Kolsawadi, tq. & Dist. Parbhani. ... PETITIONER VERSUS 1. Khanderao S/o Apparao Avhad, Age: 44 years, Occu.: Agri., R/o Pokharni, Tq. Dist. Parbhani. 2. Maroti S/o Apparao Avhad, Age: 39 years, Occu. & R/o as above. 3. Narayan S/o Apparao Avhad, Age: 34 years, Occu. & R/o As above. 4. Gangadhar S/o Govindrao Kolekar, Age: 79 years, Occu.: Agri., R/o Kolsawadi, tq. & Dist. Parbhani. 5. Narhari S/o Kashinath Kolekar, Age: 19 years, Minor under Guardinaship of real father Kashinath S/o Govindrao Kolekar, Age: 49 years, Occu.: Agri., R/o as above. ... RESPONDENTS *** Mr. P. N. Kalani, Advocate for the Petitioner. *** CORAM: S. B. DESHMUKH J. DATED:- 11th FEBRUARY, 2010. 2 ORAL ORDER: 1. Heard learned counsel for the Petitioner. Appointment of T.I.L.R. by the learned 4th Joint Civil Judge, Junior Division, Parbhani by passing order below Exhibit-79 in Regular Civil Suit No.217 of 200 is assailed in this writ petition. Order impugned appears to have been passed by the trial Court on 19th November, 2009. Copy of the plaint is on record of this petition., filed by the defendant No.2. Counsel for the petitioner fairly concedes that other defendants are brothers of the present Petitioner, however, are not petitioner before this Court. Copy of the plaint is at Annexure-B. It is a suit for recovery of the alleged encroached area to the extent of 48 Ares land from Gat No.89 from eastern side. Counsel for the Petitioner, para Para 7 of the plaint, points out that before filing of the suit, measurement was carried out by the T.I.L.R. on 26th May, 2004 and and it was found that the defendant had committed encroachment over 48 Ares of land. This appears to have been filed by the 3 plaintiff on 15th July, 2004. Despite this fact, application seeking appointment of T.I.L.R. is sought by the plaintiff, according to counsel for the Petitioner, is illegally accepted by the trial Court. 2. Counsel for the Petitioner took me to page 38 of the compilation whereat copy of the appeal filed under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 is pending. Annexure-F, page 38, shows that notice has been issued by the T.I.L.R., Parbhani on 1st September, 2007 to the parties for carrying measurement on 18th October, 2005. Learned counsel for the Petitioner also points out nature of document which are annexed with the petition Annexure-I. Submission is made that appeal is pending before the Consolidation Officer, measurement were carried out before filing of the suit. The measurement map is on record. Stage of the suit, for final hearing, is pointed out by the learned counsel for the Petitioner. Now, at this stage, it is highly illegal to appoint the commissioner. Commissioner for the 4 Petitioner read para 4 of the order impugned. Learned judge has considered the stage of the suit, referred judgment of this Court in Second Appeal and recorded a fact that map, which is on record, is disputed by the present defendant. He, therefore, thought it appropriate to allow the application. 3. Encroachment over the agricultural land is an ordinary phenomena in rural part of the State. Encroachment can be carved out, map can be drawn and produced on record by the department of Survey and Measurement. Ordinarily, District Inspector of Land Records is heading the department at district level and now a days State has appointed Taluka Inspector of Land Records at Taluka level. These are competent authorities, firstly public servants, secondly possessing the entire record i.e. the land settlement and record created and maintained by the officers functioning under the provisions of the Consolidation Act, 1947. Considering the submissions and order passed by the learned trial Court, in my view, order impugned cannot be said to be perverse or illegal, to be 5 interfered with in the extraordinary jurisdiction. 4. Writ petition stands dismissed in limine with no order as to costs. [S.B.DESHMUKH, J.] Dated:11/02/2010. ans/1078 6 WRIT PETITION NO.: OF 200 Date of decision: 11th FEBRUARY, 2010. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE