(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 6080 OF 2009 1. Alimoddin s/o. Shamsuddin, 2. Gajiyoddin s/o. Shamsuddin, .. Petitioners 3. Harun @ Hasan s/o. Shamsuddin, (Original 4. Yusufoddin s/o. Shahabuddin. defendants) versus 1. Ramesh s/o. Ramnath Malpani, 2. Asaram s/o. Ramnath Malpani, .. Respondents 3. Satyanarayan s/o. Ramnath Malpani, (Original 4. Shamsundar s/o. Ramnath Malpani. plaintiffs) .......................... Mr. M.M. Patil (Beedkar), Advocate, for the petitioners. Mr. S.G. Chapalgaonkar, Advocate, for Respondent nos.1 to 4. .......................... CORAM : B.R. GAVAI, J. DATE : 9TH NOVEMBER 2009. (2) COURT'S ORDER : 1. By way of present petition, the petitioners have challenged the order dated 30th July 2009, passed by the learned Civil Judge (Junior Division), Majalgaon, below Exhibit 28-D in Regular Civil Suit No. 73/2008, thereby rejecting the application filed by the present petitioners for appointment of Taluka Inspector of Land Record, as court commissioner. 2. Mr. M.M. Patil (Beedkar), learned Counsel appearing for the petitioners, submits that since there is a dispute about the encroachment, it is necessary that the land should be measured by the Taluka Inspector of Land Record. He has relied on the judgment of the learned Single Judge of this court, in the case of Kashinath Chindhuji Shastri Vs. Haribhau Nathuji Bawanthade [2004(2) Mh.L.J. 722]. 3. The learned Single Judge of this court, in the case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others [2001(2) Mh.L.J. 959], has held that an appointment of court commissioner, under Order 26 Rule 9 of the Code of Civil Procedure, 1908, is not permissible for collecting evidence in support of case of a party. 4. In the present case, the suit filed by the respondents plaintiffs is for removal of encroachment. In that view of the matter, it would be necessary for the plaintiffs to establish from the evidence led by them, that the petitioners defendants have encroached upon the suit site. In that (3) view of the matter, no perversity could be found with the approach adopted by the learned Judge of the trial court, so as to warrant interference in exercise of extraordinary jurisdiction of this court under Article 227 of the Constitution of India. 5. Petition is, therefore, dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp6080