1 WP 4820.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4820 OF 2011 Girjabai W/o Brahmaji Bhokre Age : 69 Yrs. ,Occ. Agril., R/o : Kautha, Tq. & Dist. Nanded. .... PETITIONER V E R S U S 1. Gaubai W/o Sambhaji Jadhav Age : 70 Yrs., Occ. Agril., R/o : Asarjan, Tq. & Dist. Nanded. 2. Jai Gurudeo Enterprises Through its partners : A) Jaganath S/o Madhavrao Chakkarawar Age : 54 Yrs., Occ. Business, R/o : Vajirabad, Nanded, Dist.: Nanded. B) Gurudeepsing S/o Indarsing Telar Age : 57 Yrs., Occ. Business, R/o : Chikalwadi, Nanded, Dist.: Nanded. .... RESPONDENTS Mr. A.M.Gaikwad, Advocate for the Petitioner. Mr. P.R.Katneshwarkar, Advocate for Resp. No. 1. Mr. A.F.Bhakkad, Advocate for Resp. No. 2. 2 WP 4820.2011 - [ J ] CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 06/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The petitioner is the original defendant. Respondent no. 1 had filed Suit for declaration of ownership and injunction in respect of land G.No. 122. During the pendency of the Suit, the plaintiff moved an application for appointment of T.I.L.R. as a Court Commissioner with a view to ascertain the boundaries of G.Nos. 121 and 122 situated at Kautha. The said application is allowed. Aggrieved thereby, the defendant has filed the present Writ Petition. 4. Mr. Gaikwad, learned counsel for the petitioner submits that it is a Suit for declaration and injunction and not the Suit for removal of encroachment. There are no disputes about the boundaries. In such circumstances, the Commissioner could not have been appointed. 3 WP 4820.2011 - [ J ] 5. Mr. P.R. Katneshwarkar, the learned counsel for respondent no. 1 submits that in fact the dispute is about the boundaries and the respective possession. After the sale deeds were executed, the consent deed was also executed, wherein the correction was made. As the dispute is in respect of boundaries, the T.I.L.R. would be a proper person. The trial Court has taken into consideration this aspect and has properly exercised the discretion. According to the learned counsel, the same need not be entertained with. 6. With the assistance of the learned counsel, I have gone through the pleadings and the application. 7. The Court has appointed the T.I.L.R. as a Commissioner for elucidating the matter in dispute and the exact position of the suit land. The same can be arrived at only by measurement of the respective lands claimed by the parties. I have perused the impugned order. The impugned order nowhere directs the T.I.L.R. to measure the properties. It has only directed the T.I.L.R. to inspect the suit property and ascertain four ( 4 ) boundaries by drawing Map and to submit the report. The T.I.L.R. can ascertain the boundaries only by measurement and not merely by visual inspection of the suit property. The same will have to be pursuant to the rival claims and 4 WP 4820.2011 - [ J ] the record. As the trial Court has not directed the Commissioner to measure the properties, mere inspection of the suit properties would not serve any purpose. In that light of the matter, the impugned order can not be sustained and the same is set aside. 8. The parties are yet to adduce the evidence. After the parties adduce their evidence, the parties are at liberty to move an application for appointment of T.I.L.R. as Court Commissioner afresh and at that time if the Court considers it appropriate to appoint the Commissioner, the Court may consider the application for appointment of T.I.L.R. on its own merits afresh. The rejection of the present application Exh. 70 would not be an impediment for the Court to consider the said application afresh. 9. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 4820.2011 - [ J ]