1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10337 OF 2009 Humayun Vazir Shaikh Petitioner versus Nisar Tajuddin Shaikh and others Respondents V.S.Talkute for petitioner. S.S.Shah for respondents 1 to 4. CORAM : A.S.OKA, J. DATE : 11th March 2010 PC : 1. Submissions of the learned counsel for the parties were heard yesterday. The papers are produced as the petition is not placed on board today. The petitioner is the original plaintiff and the respondents are the defendants. The suit was filed by the petitioner for removal of encroachment allegedly made by the respondents. Written statement has been filed by the respondents in which allegations of encroachment have been denied. An application was made by the petitioner for appointment of Taluka Inspector of Land Records as Court Commissioner. The said application has been rejected by the impugned order by observing that the suit is for mandatory injunction and that a prayer ought to have been made by the petitioner in the suit for fixing the boundary between the property of the petitioner and the respondents. However, the Trial Court 2 observed that there is a boundary dispute between the petitioner and the respondents. 2. After having heard learned counsel for the parties, I find that this was a fit case for appointment of Court Commissioner. The petitioner claims to be the owner of land bearing gat no.126/3 at village Ganeshgav, Taluka Malshiras, District Solapur. The allegation made in the plaint is that the respondents have committed encroachment to the extent of 10'x15'. Written statement has been filed by the respondents. The case made out by the respondents is that they are the owners of the land gat no.125/1. Their contention seems to be that there is no encroachment made and the erection of poles covered with tin sheets is in their own property. 3. The Trial Court in the impugned order has noted that there is serious dispute between the parties as regards boundaries of the adjoining properties. In the circumstances, in view of the law laid down by this Court, the application made by the petitioner ought to have been allowed with modification that the properties claimed by both the petitioner and respondents will have to be measured. 4. Hence, the writ petition is disposed of by passing following order :- A) The impugned order is quashed and set aside; 3 B) The application made by the petitioner at Exhibit-8 is allowed with modification that the Court Commissioner will measure the properties claimed by both the parties; C) The counsel for the petitioner states that the petitioner is not opposing the application at Exhibit-5 for temporary injunction. The statement is accepted. Accordingly, the said application at Exhibit-5 stands disposed of; D) The writ petition is allowed in the above terms. (A.S.OKA, J.)