1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4125 OF 2008. Mohanrao Bhausaheb Patil and others ... Petitioners. Versus Chandu Sambhu Metkari ... Respondent. ... Mr.V.D.Salunke, advocate holding for Mr.S.T.Ghute Patil, advocate for the petitioners. Mr.V.R.Jain, advocate holding for Mr.S.M.Vibhute, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 03.07.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioners are original plaintiffs who filed suit (RCS No.246/2001) for removal of 2 encroachment. They claimed to be owners of land bearing Gat No.88, admeasuring 7 hectares 10 Ares to the extent of 6 hectares 29 Ares and alleged that during measurement carried out by the TILR (Taluka Inspector of Land Records), it was noticed that adjacent land owner of Gat No.84 had encroached 19 Ares (gunthas) area of their Gat No.88. They sought recovery of possession to the extent of said 19 gunthas encroached land from the Respondent vide the suit. Thereafter the Respondent got measured his land Gat No.84 through the TILR. He claimed that during such measurement 40 Ares area of his land was found to have been encroached by the petitioners and, therefore, he sought recovery of such encroached portion of his land by filing counter suit bearing (RCS No.205/2002). In view of the inconsistency found during measurement at the two occasions, the petitioners submitted an application (Exh.20) in their suit for remeasurement of both the lands by appointing TILR as Commissioner. The trial Court allowed their application and appointed the TILR as Court Commissioner. The TILR measured both the lands 3 as per directions of the Court but did not give the report within stipulated time frame. There was delay caused by him while submitting the report to the Court. 3. The Court Commissioner so appointed gave report to the effect that 80 Ares land of Gat No.84 has been encroached over by the petitioners. Needless to say all the three reports by the same authority are inconsistent with each other. The petitioners objected to such report of the TILR on the ground that it was purposefully delayed in connivance with the Respondent and that details regarding remaining portion of the land Gat No.88 as well as the location of the alleged encroached area were not properly furnished as per directions of the Court. In view of such three different kind of reports of the TILR, again the petitioners filed application (Exh.31) for appointment of SLR (Superintendent of Land Records) as a Court Commissioner so as to carry out joint measurement of both the lands, fix boundaries thereof and to locate the encroachment, if any. The application 4 (Exh.31) was objected to by the Respondent and on the ground that the second request for appointment of Court Commissioner can not be entertained. The trial Court held that second Commission could not be issued inasmuch as the petitioner did not give appropriate data so as to again undertake the joint measurement. 4. Heard learned counsel. 5. There can not be duality of opinion that ordinarily, second Commission can not be issued only because a party is not satisfied with the work done by the first Commissioner. There is no dispute about the proposition that ordinarily the same Commissioner may be called for examination U/o XXVI Rule 10 of the C.P.C. in order to verify whether the work is properly carried out or there are defects which vitiate such kind of work. The fact situation in the present case is on quite different footings. It is pertinent to note that the same TILR gave two different reports, first at the instance of the petitioners, second at the instance of the 5 Respondent when the lands were separately measured. On the third occasion, the same TILR gave yet another inconsistent report when the lands were measured together. It is well settled that joint measurement of the lands is ordinarily required when the question of encroachment is to be determined. The appointment of a Court Commissioner only for inspection of the suit site is different from appointment of a Court Commissioner to carry out actual measurement as an expert. The parties are from rural area and are agriculturists. The appointment of cadastral surveyor was necessary to determine the area of the lands held and for fixation of boundaries. The Superintendent of Land Records (SLR) is appellate authority in respect of the measurement work of the TILR. The appointment of such appellate authority was sought in order to dispel doubt created due to inconsistencies in the three (3) reports of the TILR. The intention of the petitioners was to settle the issue once for all and with some authenticity available to the higher authority of the SLR. The SLR would be in a better position to locate which of the report 6 of the TILR is proper and whether the measurement carried out in respect of both the lands is properly executed. Needless to say, application (Exh.31) was submitted in order to obtain opinion of the higher authority as an expert and for the purpose of removing doubts created due to the three different versions of the TILR. The opinion of the expert would give more and better information in the process of dealing with all the questions of encroachment. 6. The learned trial Judge should have considered the nature of the three inconsistent reports of the TILR and the need to obtain better assistance to the Court in the process of judicial determination of the issue pertaining to alleged encroachment. The appointment of the SLR in such a fact situation would curtail scope of the litigation and perhaps will be in the aid of the judicial process. One can not be oblivious of the fact that opinion of the expert is relevant in view of Section 45 of the Evidence Act and, therefore, in such a case mere technicality should not deter the trial Court 7 from exercising the discretion in an appropriate manner. The appointment of Court Commissioner is not only restricted to the provisions of Order XXVI of the C.P.C. but the real power to make such appointment stems from Section 75 of the C.P.C. Under these circumstances, the impugned order is quite unsustainable and deserves interference. I am of the opinion that the judicial discretion is not properly exercised by the trial Court in the circumstances of the present case. 7. Consequently, the petition is allowed. The impugned order is quashed. Rule is made absolute. The application (Exh.31) is allowed with direction that the SLR be appointed if necessary charges are deposited by the petitioner in the trial Court within a period of four (4) weeks and directions be issued to appropriately carry out joint measurement of both the lands i.e. Gat No.88, Gat No.84 as well as land Gat No. 88 which is not owned by the petitioners i.e. the land excluding their 6 hectares 29 Ares and to fix boundaries of all the three parcels of the 8 lands and then to determine the area of encroachment if any. The trial Court shall issue direction to the SLR to submit the measurement report alongwith all the relevant details within a reasonable period if the Commissioner's fees is deposited within the above time frame. Petition is accordingly disposed of. (V.R.KINGAONKAR,J.) asp/office/wp412508