{1} WP No.8222/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8222 OF 2011 1. Rajendra Walchand Shinde PETITIONERS Age-46 years, Occ-Business Hotel Bhavna, Near Gurudwara, Dhule, Dist-Dhule 2. Narayan Pandurang Budke, Age-80 years, Occ-Pensioner R/o Rajwade Nagar, Dhule Dist-Dhule VERSUS Mahadev Dnyanba Vibhute RESPONDENT Age-63 years, Occ-Agriculturist R/o Behind Manohar Cinema Hall Dhule, Dist-Dhule ....... Mr.S.P.Chapalgaonkar, Advocate for the petitioners Mr.S.P.Shah, Advocate for the respondent ....... [CORAM : A.V.POTDAR, J.] DATE: 5 th December 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard finally by consent. {2} WP No.8222/2011 2. This petition, under Article 227 of the Constitution of India, questions the legality and correctness of the order dated 27.09.2011 passed below Exhibit-47 by IVth Joint Civil Judge, Junior Division, Dhule thereby appointing Court Commissioner. 3. Such of the facts, as are necessary for the decision of this petition, may briefly be stated thus - Present respondent had filed RCS No.143/1997 seeking perpetual injunction in respect of the property described in the plaint paragraph No.2. Along with the plaint, a map (Exhibit-74) was also annexed showing the exact position of the suit property. The petitioners are the defendants in the said suit and they had contested the same. It appears that the trial court had decreed the suit vide judgment and decree dated 27.02.2004. It further appears that this judgment and decree was challenged by the petitioners in Regular Civil Appeals No.39/2004 and 40/2004, which came to be dismissed. It appears that the judgment and order dated 30.10.2006 passed in Civil Appeals No.39/2004 and 40/2004 was {3} WP No.8222/2011 challenged by the first petitioner before this Court in Second appeal No.198/2007. It also appears that the property in question was jointly purchased by the respondent and petitioner No.2. Learned Single Judge of this Court, while disposing of the second appeal, has observed that during the pendency of the suit before the trial court, the share of the second petitioner was purchased by the first petitioner and on the basis of this alienation of the property pendente lit, now the petitioner No.1 is claiming to be the co-owner and in joint position of the property along with the respondent. It is specifically observed by this Court while disposing of the second appeal that the record produced before it prima facie discloses that though initially the petitioner No.2 was in joint possession as co-owner with the respondent, yet due to transaction pendente lit, the petitioner No.1 has became, joint / co owner of the property in question, however the property is in exclusive possession of the respondent / original plaintiff. It is observed by this Court in the concluding paragraph of the judgment that in the light of this though in law and equity, it is not permitted to grant injunction against the co-owner as in the eye of law, the possession of the co-owner is with the possession of the person in actual {4} WP No.8222/2011 possession of the property, yet at the same time, considering the record, this Court has observed that the present respondent is in exclusive possession of the suit property and his possession need not be disturbed by the petitioners without following the due process of law. Whether the order passed in Second appeal is subject matter of challenge before Supreme Court or not is not brought on record. 4. Considering the admitted position, at least at this stage, I have no hesitation to accept that the present respondent is in exclusive possession of the suit property for which the respondent had filed RCS No.143/1997. It appears that the execution petition was filed on 26.04.2005 for execution of the decree passed by the trial court and confirmed by this Court. The procedure to execute the decree is specifically provided under Order 21 and the sub rules made thereunder in the Civil Procedure Code. 5. In the light of this, the order impugned in this petition is required to be considered. Perusal of the application Exhibit-47, {5} WP No.8222/2011 particularly paragraph No.2 indicates that it is alleged that on 22.04.2005 to 24.04.2005, defendant No.1 with the assistance of his associates, has violated the decree passed in RCS No.143/1997 by demolishing the compound wall, shed and destroying not only the well but also the lawn which was used by the respondent for his hotel business. Admittedly, the said application (Exhibit-47) is filed on 02.07.2011 to bring on record the incident allegedly taken place on 22.04.2005 to 24.04.2005 i.e. virtually 6 years after the alleged incident that too without uttering a single word as regards the position on 22.04.2005 or 24.04.2005 was continuously maintained as it was for the period of 6 years. In absence of any such averment and considering the fact that there is no recent cause of action to file the application (Exhibit-47), the same is hopelessly barred by time. 6. This Court, has taken a consistent view that the Court Commissioner cannot be appointed under Order 26 Rule 9 of the Civil Procedure Code to create evidence in the pending litigation barring few exceptions. In view of this legal position if the decree holder intends to bring on record the facts which has allegedly {6} WP No.8222/2011 taken place 6 years back and the application is moved after 6 years then to allow such application is nothing but an abuse of process of law. In the substance, the order dated 27.09.2011 impugned in the present petition is not in accordance with law. At this juncture, it may be stated that the reliance placed by the trial court on the judgment in “Kolhapuri Bandu Lakade V/s Yallappa Chinnaappa Lakade” 2011 (3) Mh.L.J. 348 is misconstrued. In the premise, the impugned order requires to be quashed and set aside. 7. Consequently, the writ petition succeeds. The order dated 27.09.2011 passed below Exhibit-47 thereby appointing Commissioner to visit the spot and to place on record the factual situation is hereby quashed and set aside. Rule is made absolute as indicate above. 8. It is, however, clarified that if the respondent / decree holder intends to bring on record the fact of breach of the decree by the petitioners, then he is not precluded to do so and the order passed in this petition shall not come in his way to do so. Learned {7} WP No.8222/2011 counsel for the respondent seeks leave that in case any application is filed on behalf of the respondent seeking appointment of commission to bring on record the situation of the year 2005, then he may be allowed to do so. After lapse of 6 years, such permission cannot be granted in law and hence the request of the learned counsel for the respondent is turned down. [A.V.POTDAR, J.] drp/B11/wp8222-11