1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR LETTERS PATENT APPEAL NO. 493 OF 2009 in WRIT PETITION NO. 2212/2009 (D) (Kartiki Stone Crusher ..vs.. Naryan Pundlik Gawande) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Shri B.N.Mohota, Advocate for the Appellants CORAM : A.H.JOSHI & A.R.JOSHI, JJ. DATED : DECEMBER 07, 2009. (Per A.R.Joshi, J.) 1. Heard learned Advocate Mr. B.N.Mohota for the appellants at length. 2. The order dated 06th July, 2009 passed by learned Single Judge of this Court in Writ Petition No. 2212/2009 is challenged by the present petitioners-original defendants. 3. Without going in much details of the controversy between the parties, suffice it to say that respondent-original plaintiff had filed Special Civil Suit No. 148/2000 for various reliefs including removal of the encroachment over his property. Crux of grievance is based on plea of encroachment by the defendant and illegal and unauthorized extraction of minor minerals from the encroached land. 4. In the written statement, the defendant denies everything except the existence of plaintiff. The tenor and form of the written 2 statement is that either the defendants do not know that in law, they cannot or shall not deny what they ought never deny and the lawyer for defendant is victim of clients’ wishes and oblivious to his basic duty towards law and truth. Lawyer and the defendant have lost sight of the fact that such wholesome denial without denial of specific facts of the matter may be construed as evasive denial and may even be used against them as an admission. 5. In the written statement, the defendant has specifically suggested that the land encroachment whereof is alleged, has not been measured which was/is necessary before the plea of measurement. 6. During the pendency of the suit and when the case was fixed for evidence, an application was filed by respondent-plaintiff for appointment of Court Commissioner to inspect the suit property, measure the areas, ascertain the encroachment and to give report on the factual aspects. 7. After hearing the parties, Court passed order dated 19/01/2009 below Exh.19 and appointed the Taluka Inspector of Land Records as a Court Commissioner. This order was challenged before the learned Single Judge of this Court in above mentioned Writ Petition. 8. It was submitted before Single Judge by the petitioners- defendants that the appointment of Court Commissioner tentamounts to assisting the plaintiff in collecting the evidence and that such exercise is not permissible under the law in as much as the plaintiff has to stand on its own footing and that no extraneous material can be gathered, much 3 less at the hands of the Court Commissioner. 9. Argument advanced on behalf of the petitioner-defendants before us in addition to what was argued before Single Judge is that the suit was not even started for taking plaintiff’s evidence. 10. Present appellant’s foregoing submissions did not find any favour with learned Single Judge of this Court, who dismissed the writ petition. 11. We had called upon learned Advocate Mr. Mohota to express as to whether it would be possible to challenge the appointment of TILR as Commissioner in view of reported judgment delivered by one amongst us (Justice A.H.Joshi) namely Vijay Shrawan Shende..vs.. State of Maharashtra, reported in 2009 (5) Mh.L.J. 279. 12. Learned Advocate Mr. Mohota accepted the proposition of law as decided in case of Vijay (supra), however, urged that stage for appointment would be only after plaintiff’s oral evidence is over. 13. Inspection of the copy of roznama, produced before us, indicates that case is fixed for evidence and in the midst the application for appointment of TILR as Court Commissioner has been filed. Even on repeated query, learned Advocate Mr. Mohota is unable to make a statement on fact of plaintiff’s examination-in-chief on affidavit is filed. In this background, the argument advanced by learned Advocate Mr.Mohota is without laying down proper factual foundation and deserves rejection at the out set. 4 14. As has been held in Vijay’s case (supra), encroachment is such fact that it has to be proved by measurement and inspection by an expert alone. Oral evidence of encroachment has its inbuilt limitations. Appointment of TILR as Court Commissioner is not just necessary, but imperative in case at hand like any other similar case. 15. Otherwise also, it may not be material, considering the pleadings of the parties, as to whether the case was fixed for evidence or not at the time of asking for the appointment of the Court Commissioner. Needless to mention that at times, in order to ascertain the factual position on the spot considering the allegations, the Court Commissioner can be appointed even at the threshold of the proceedings. 16. In these premises, therefore, short point involved in the matter is as to whether there are any grounds to interfere with the order of learned Single Judge of this Court under the jurisdiction of Letters Patent Appeal. 17. The submission canvassed before us was also canvassed before the learned Single Judge of this Court and it was properly dealt with by rejecting the same. Needless to mention that considering the prayers in the original suit and considering the request of respondent-plaintiff for appointment of Court Commissioner, the same cannot be termed as a step by the court to grant aid in support of the case of the plaintiff to permit or equip him to prove his case. This is more so, when there is a categorical pleading of the plaintiff that the defendants have encroached upon the plaintiff’s land. 5 18. In view of above discussion, we do not find any reason, much less the warrant of law, to interfere with the impugned order of the learned Single Judge of this Court and hence, present Letters Patent Appeal is rejected with costs. JUDGE JUDGE Diwale