W.P.No.9108 of 2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.9108 OF 2011 Chandrakant s/o Sonajirao Ghodake and anr. ..Petitioners Versus Mukund s/o Uttamrao Advant and ors. ..Respondents Mr P.D.Suryawanshi, Advocate for petitioners Mr N.B.Patil, A.G.P. for respondent No.3 CORAM : S.V.GANGAPURWALA, J. DATE : 28th November 2011 PER COURT 1. The present petitioners are the original defendants. The respondent filed a suit for possession on the ground that the present petitioners/defendants have encroached over the land. During the pendency of the suit, the present petitioners filed an application for appointment of T.I.L.R. as Court Commissioner to measure the land of the plaintiff and the defendants. The said application is rejected. Aggrieved thereby the present petition is filed. 2. Shri Suryawanshi, the learned Counsel for the petitioners submits that the measurement on which the plaintiff is relying is false, frivolous and not on the basis of any decree. The learned Counsel contends that in a plaint itself it has been stated that the T.I.L.R. had issued notice on 14.4.2007, but the measurement according to the plaintiff is carried out in W.P.No.9108 of 2011 2 December 2006 itself. This shows that no measurement has taken place in the presence of the petitioners and the alleged measurement relied by the plaintiff is frivolous. To eradicate this dispute the petitioners have filed an application for appointment of T.I.L.R. as a Court Commissioner but the trial Court without considering the same in its proper perspective has rejected it. 3. With the assistance of learned Counsel I have gone through the order passed by the trial Court. The trial Court has observed that it is for the plaintiff to prove his case and the alleged encroachment. The plaintiff has come with the case that the T.I.L.R. has carried out the measurement and it is for the plaintiff to prove the said measurement. The opportunity will be available to the petitioners to cross-examine the T.I.L.R., in case he is examined and disprove the contentions of the plaintiff and the T.I.L.R., as the measurement without the examination of T.I.L.R. cannot be proved. 4. The Court has also observed that if it is proved that the measurement carried out by the T.I.L.R. is faulty and was not carried out by following prescribed procedure, then plaintiff will suffer the consequences. W.P.No.9108 of 2011 3 5. In view of the above, no error is committed by the Court while passing the impugned order. The writ petition as such is dismissed with no orders as to costs. ( S.V. GANGAPURWALA, J. ) (vvr/9108.11wp)