1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR LETTERS PATENT APPEAL NO.277 OF 2009 IN WRIT PETITION NO. 467 OF 2001(D) (Shri Rajendra s/o Shrikrishna Deshmukh ..vs.. Shri Ramchandra s/o Sakharam Mahajan and others) ------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ------------------------------------------------------------------------------------------------------------------------------------ Shri. C.S. Kaptan, Counsel for the appellant, Shri A.S. Jaiswal, Counsel for respondent No.1, Shri U.M. Aurangabadkar, Counsel for respondents 2-a to 2-d, 3 & 4, Shri I.J. Damle, Counsel for respondent No.5, Shri A.S. Fulzele, A.G.P. for respondent No.8. CORAM:- D.B. BHOSALE AND P. B. VARALE, JJ. DATED :- 24 th JUNE, 2010 1. Heard learned Counsel for the parties. 2. This Letters Patent Appeal is directed against the judgment and order dated 06-03-2009 passed by the learned Single Judge in Writ Petition Nos. 467/2001, 557/2001 and 1108/2001, disposing of all the three writ petitions with directions to the Civil Court to appoint the City Survey Officer as Commissioner to measure the properties in dispute. Such directions were issued by the learned Single Judge in view of the order passed by the Hon'ble Supreme Court in the Special Leave Petition, whereby liberty was granted to the parties to get the properties measured through Court Commissioner. The litigation pending between the parties has a 2 checkered history. We do not propose to refer to the same in detail for disposing of this Letters Patent Appeal. 3. There is no dispute that two civil suits were filed by respondent No.1 being Regular Civil Suit No.53/90 against Tanksale family, and Regular Civil Suit No. 875/92 against Deshmukh family. This Letters Patent Appeal is filed by Deshmukh family. Out of these two suit, one suit was dismissed and the matter was carried to the Hon'ble Supreme Court. The Hon'ble Supreme Court allowed the Special Leave Petition and remanded the suit for its hearing afresh to the trial Court and while doing so allowed to the parties to get the properties measured through Court Commissioner. In view thereof, the learned Single Judge in the instant petition has issued the impugned directions. The relevant observations made by the learned single judge in paragraphs 5 and 6 reads thus;- “5. By the order passed in Special Leave Petition, the Supreme Court had only given liberty to the parties to get the property measured through Court Commissioner. In my considered opinion, if Civil Court appoints the City Survey Officer as Commissioner to measure the property, purpose would be better served because the Commissioner may be called as witness before the Court and there will be no need for the parties to approach the Superintendent Land Records for correction of the records. In my considered opinion, taking into consideration long history of the litigations, even after measurements pending the suit, it will not be 3 desirable that revenue authorities make any changes in revenue records. It should be left to Civil Court to decide the rights of the parties in the litigations before it. 6. In view of the circumstances, and particularly in the light of directions given by the Supreme Court in Regular Civil Suit No.53/1990, the trial Court shall appoint a Commissioner to take measurement of the entire property bearing Survey No.327/1 including the disputed portion in Regular Civil Suit No.53/1990 as well as Regular Civil Suit no. 875/1992. Initially, the cost of the measurement shall be borne by the plaintiff in the suit. As in both the suits, the disputed property is part of survey No.321/1, it will be desirable to appoint common Commissioner in both the matters and it will also be desirable that both the civil suits shall be heard and disposed of simultaneously.” 4. In our opinion, the learned Single Judge has considered the matter in proper perspective and, in our opinion, the impugned judgment deserves no interference in this appeal. We are satisfied that no prejudice, whatsoever, would be caused to the appellant if the properties in dispute are measured as per directions issued by the learned Single Judge. Hence, the Letters Patent Appeal is dismissed. JUDGE JUDGE pma 4