1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11116 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 11116 OF 2010 *** 1. Heard Advocate Mr. Warad for petitioner and Advocate Mr. Rodge for the Respondent. 2. The petition is by defendant and challenge is to rejection of an application for appointment of Commissioner to verify spot. Dispute in suit is about right of way. 3. Shri Warad has invited attention to issues as framed to show that burden is upon petitioner to prove existence of easementory road through the suit lands. Suit lands are Survey No.435 belonging to present Respondent/ plaintiff. He also shows to this Court a map to explain how the way claimed is shortest and convenient for petitioner. Reliance is being placed upon two judgments of this Court in the case of "Kisanlal Maniklal Rathi V/s Dinkar Yashwant Patil" reported in 2004 (1) Mh.L.J. 138 and the case of "Kashinath Ramkrishna Chopade V/s 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11116 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Purushottam Tulshiram Tekade and ohters" reported in 2005 (6) Bom. C.R. 267. 4. Shri Rodge for Respondent/ plaintiff points out that evidence of the Respondent/ plaintiff is already over and according to Advocate Mr. Warad the defendants are still leading their evidence. 5. After hearing respective counsel I find that dispute about availability of alternate road or then the convenience is not relevant in present suit. Ingredients to establish availability of easement must be proved. Verification on spot cannot bring such material on record. The way available being shortest cannot be claimed as easement if it is not "a way". The trial Court has correctly appreciated the situation and found that Commissioner cannot be appointed to verify the position. 7. Two judgments of this Court referred 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11116 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. above considered the necessity of appointment of Commissioner in suits where prayer is for removal of encroachment and hence measurement of suit property through an independent and impartial machinery having technical expertise is found necessary. The other judgment is in relation to a suit where the question was of identity of suit properties. It is therefore apparent that in present matter those two precedents are not helpful to the petitioners. 8. As I do not see any jurisdictional error or perversity, present petition is rejected. However, petitioners are given liberty to challenge the order of trial Court dated 1th September, 2010 passed below Exhibit-10 after suit is finally decided if occasion therefor arises. [B.P.DHARMADHIKARI, J.] Dated:08/04/2011. ans/11116