1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.5780 OF 2011 Shivaji s/o Motiram Ingale ..Petitioner Versus Prakash s/o Neminath Jain ..Respondent Mr R.S. Deshmukh, Advocate for petitioner Mr A.P.Bhandari, Advocate for respondent CORAM : MRS MRIDULA BHATKAR, J. DATE : 21st September 2011 PER COURT 1. In this writ petition, the petitioner who is the original plaintiff in Regular Civil Suit No.24/1998 has challenged the order of the appointment of the Commissioner dated 4.7.2011, passed by the Civil Judge, Junior Division, Jafrabad district Jalna. There is a chequered history of the suits filed by the petitioner, i.e. the original plaintiff and the respondent filed suits against each other for the same relief i.e. for the perpetual injunction. Both, petitioner and respondent possessed adjoining lands and the dispute is in respect of the boundary of the lands. Respondent has moved application for appointment of the Commissioner earlier Exh.21 on 24.11.1998, which was not pressed. Thereafter second application Exh.48 was 2 filed on 11.9.2003, which was also dismissed. Then he preferred third application in R.C.S.No.24 of 1998 i.e. Exh.82 on 18.2.2008. R.C.S.No.24 of 1998 was decreed and R.C.S.No.86 of 1999 was dismissed, against which appeals were preferred and both the appeals were allowed and the suits were remanded for deciding afresh. Against the judgment and order of appellate Court, the present petitioner filed appeals from order. However, the said appeals from order were also dismissed by this Court by order dated 7.9.2009. In the said order dated 7.9.2009, this Court has expressed a view that application for appointment of Court Commissioner i.e. Exh.48 in R.C.S.No.24 of 1998 ought to have been allowed and there was necessity of reconsideration of appointment of Court Commissioner, as it involved a boundary dispute. The trial Court thereafter decided the application for appointment of Commissioner, i.e. Exh.82 and allowed the said application by order dated 4.7.2011, which is a subject matter of this writ petition. 2. Learned Counsel appearing for the petitioner submitted that the application is not decided on merit and secondly, he objects that application which is marked Exh.48 dated 11.9.2003, which was dismissed on 16.9.2003 ought to have been considered. However, trial Court instead of deciding the application Ex.48, decided the 3 application at Exh.82, which was again filed for appointment of the Commissioner. 3. The objections of the learned Counsel for the petitioner do not hold any substance in view of the specific observations made by this Court in paragraph 3 of the order dated 7.9.2009 passed in Appeal from Order Nos.23 and 24 of 2008. The learned Single Judge of this Court has held that the application for appointment of Court Commissioner, which is Exh.48 should have been allowed. However, before the trial Court the said application was already dismissed in 2003 and the trial Court, therefore, has taken a proper view to decide the other fresh application Exh.82, which was made for the appointment of the Commissioner. 4. Learned Counsel for the petitioner at the end submits that as it is a dispute of boundary and the measurement of the lands, a person who is well conversant and has a thoroughl knowledge should have been appointed as a Court Commissioner. 5. Under Order 26, Rule 9 a person, who is appointed as a Commissioner should be only a “fit person” and, therefore, the trial Court has rightly appointed an Advocate as a Court Commissioner 4 and he is directed to fix the boundary and take the measurements with the help of private Civil Engineer. However, it is directed that the Taluka Inspector of Land Records at Jafrabad also to remain present along with the record at the time of the work of the Court Commissioner. Court Commissioner to give two days prior notice to the Taluka Inspector of Land Records in that behalf. The writ petition being sans merit is, therefore, dismissed. ( MRS MRIDULA BHATKAR, J. ) (vvr/5780.11wp)