1 WP 5228.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5228 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. S.S.Gangakhedkar, Advocate for the petitioners. Mr.G.S.Shembole, Advocate for Resp. Nos. 1 and 2. Mr.Hiwarekar, Advocate for Resp. No. 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE :14/09/2011 PER COURT : 1. The petitioner had filed Suit for mandatory injunction claiming removal of encroachment and for injunction. The petitioner filed an application for appointment of Court Commissioner to measure South – East portion of plot No. 5 admeasuring 6 Meters x 9 meters of S.No. 14/3. The said application is rejected. Aggrieved thereby, the present Writ Petition is filed. 2. Heard the learned counsel for the respective parties. 2 WP 5228.2011 3. The reasoning given by the learned Judge that the Suit is for mandatory injunction directing the defendants to remove encroachment and not for possession and so the Commissioner can not be appointed, does not stand to any reason. When a Suit is filed for mandatory injunction seeking removal of encroachment, the same would tantamount to get possession of the encroached area. However, perusal of the application filed by the petitioner for appointment of Court Commissioner shows that the said application is filed only to measure the South – East corner of plot no. 5 admeasuring 6 meters x 9 meters. Such a measurement also would not be permissible. Unless whole plot no. 5 is measured vis-a-vis respective sale deeds of the parties and the relevant record, no purpose would be served for appointment of Court Commissioner. 4. In light of that, an application filed by the petitioner for appointment of Court Commissioner [ Exh. 19 ] can not be allowed. 5. Needless to state that for deciding the question of encroachment, the Court Commissioner can be appointed i.e. T.I.L.R. or some other competent authority to measure the disputed property along with the adjoining properties. 6. The petitioner is at liberty to file application for measurement of whole plot no. 5. The Court would consider the said application on its own merits. 3 WP 5228.2011 7. The Writ Petition is accordingly disposed of with the aforesaid observations. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 5228.2011 4 WP 5228.2011