1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7354 OF 2008 Sou.Kesharbai Ramkisan Ghumare & Oths. .... PETITIONERS V E R S U S Ramdas Sarjerao Ghumare .... RESPONDENT Mrs. Deshmukh, Advocate holding for Mr. V.D.Salunke,Advocate for Petitioner. Mr. Sachin Deshmukh, Advocate for Respondent. [ CORAM : S.S.SHINDE, J. ] JUDGMENT RESERVED ON : 24/09/2009 JUDGMENT PRONOUNCED ON : 30/09/2009 PER COURT : 1. This Writ Petition is filed challenging the Order below Exh. 41 and 45 in R.C.S. No. 121 of 2008 dated 2/12/2008 passed by the Civil Judge (Jr.Division), Patoda. By impugned orders, the trial 2 Court allowed the application filed by the respondent herein for police protection and rejected the application filed by the petitioners herein for appointment of court commissioner. 2. The learned counsel appearing for the petitioner submitted that the application at Eaxh. 41 filed by the respondent had been erroneously allowed by the trial court since dispute between the parties is of civil nature and there was no necessity of granting police protection to harvest the crop. The learned counsel further submitted that the respondent can not be allowed to pick up cotton from the field of the petitioner under the guise of the alleged encroachment committed by the petitioners, particularly when under the joint measurement conducted in presence of all the parties, it was categorically held by the Surveyor that the petitioner has not committed encroachment over the field of the respondent. The learned counsel further submitted that when there is allegation of encroachment, in that case, proper course open to the Court is to appoint the Court Commissioner to resolve the boundary dispute and issue of possession. Therefore, learned counsel would submit that the trial Court was not justified in allowing the application filed by the respondent at Exh. 41 and rejecting application filed by the petitioners for appointment of Court Commissioner at Exh. 45. In support of the contentsion of the petitioner that it is necessary to appoint Court Commissioner, the learend counsel placed reliance on the reported Judgment of this Court in case of Kishanlal Maniklal Rathi V/s Dinkar Yashwant Patil 3 reported in 2004 (1) Maharashtra Law Reporter 518 and Sukhdeo Parashramji Bhugul V/s Wamanrao Nagorao Charhat reported in 2004 (4) Maharashtra Law Reporter 18 . On the basis of the aforesaid pronouncements by this Court, the learned counsel for the petitioner would submit that the prayer of the petitioner for the appointment of Court Commissioner should have been allowed by the trial Court. 3. The learned counsel appearing for the respondent submitted that so far Order passed on Exh. 41 is concerned, said order is already implemented and, therefore, relief to the extent of Order passed on Exh. 41 can not be entertained in this petition. The learned counsel further submitted that the application filed by the petitioner at Exh. 45 with vague and general prayer has been rightly rejected by the trial court. The learned counsel submitted that the appointment of the Court Commissioner can not be to collect evidence. In support of his contention, learned counsel relied in case of Sanjay S/o Namdeo Khandare V/s Sahebrao S/o Kachru Khandare & others reported in 2001 (1) Bom. C.R. 800. The learned counsel submitted that, therefore, this Writ Petition is devoid of any merits and same deserves to be dismissed. 4. I have heard the learned counsel for the respective parties, perused the Writ Petition, annexures thereto and impugned order 4 passed by the trial court. So far prayer in this petition and setting aside order below Exh. 41, has become infructuous by efflux of time and in view of the fact that the said Order is already implemented. So far prayer of the petitioner to appoint Court Commissioner is concerned, on careful perusal of the prayer in the application, the petitioner has prayed that the Court Commissioner should be appointed to see and give his report in respect of disputed G.No. 134 and G.No. 135. It is prayed that the Commissioner should lbe appointed for the purpose of finding out, which crops are existing in the said disputed lands, to see whether boundaries are marked, whether the parties are cultivating the land or nor, what is the source available to supply water to the standing crops, whether the cotton crop is planted by the respondent in continuous row. Mere perusal of the prayer clause in the application would show that the prayer is general in nature and such prayer can not be entertained by the Court. It has not been demonstrated by the petitioner that how such job can be entrusted to the Court Commissioner as stated in the prayer clause of the application. 5. In my considered view, such application with vague prayer can not be considered for the appointment of Court Commissioner. Therefore, I do not find any substance in the Writ Petition. Hence, Writ Petition is rejected. However, it is made clear that the parties will be at liberty to file application if they so desire. The Civil Application, if 5 any, stands disposed of in view of disposal of main Writ Petition. [ S.S.SHINDE ] JUDGE knp/WP7354.08