1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 3947/2010. Deepak Nilkanthrao Buradkar. -: VERSUS :- Purushottam Dhonduji Zode. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : SEPTEMBER 20, 2010. Heard Shri Rohit Joshi, learned Counsel for petitioner and Shri M.P. Khajanchi, learned Counsel for respondent. Rule, made returnable forthwith. Heard finally by consent of parties. Challenge in this Writ Petition is to order dated 30.07.2010 passed by the 9th Joint Civil Judge, Junior Division, Chandrapur below Exh.94 in Regular Civil Suit No.322/2007, refusing to appoint Commissioner for joint measurement of plot no.38 and plot no.26 of survey no.22/3 of mouza Govindpur by appointing T.I.L.R. 2 Shri Joshi, learned counsel contends that the absence of any authentic public document on record is the only reason given by the trial Court and that reason is not correct. He has pointed out a document exhibited at Exh.54 on record of that Suit and issued by the office of the T.I.L.R. which shows the measurement undertaken by that Authority in relation to plot no.39. According to him on the basis of the said map, the measurement can be undertaken. Shri Khajanchi, learned Counsel has contended that the suit is now already at the stage of final arguments and at that stage, application at Exh.94 came to be filed. He has invited attention to the findings as recorded in paragraph no.7 to urge that in absence of that material, there cannot be any proper demarcation and measurement. The trial Court has therefore, rightly noticed that such an exercise will be an exercise in futility and rejected the application. He has relied upon the judgment of this Court reported at 2009 (5) Bom. C.R. 306 (Vijay Shrawan Shende and others .vrs. State of Maharashtra and others) to urge that view as taken does not require any interference. In the alternative he has further urged that in any case the suit is for final arguments, and the impugned order should be allowed to be challenged after adjudication therein. 3 The suit is in relation to identity of the plot allegedly purchased by the petitioner / plaintiff. It appears that the layout in which the property is situation is not approved. The observations made by the trial Court in paragraph no.7 of the impugned order are only because of this view of the controversy. However, whether the Commissioner will be in a position to measure the land of survey number, to demarcate the plot, could not have been decided by the trial Court. The plaint as filed, shows that the piece of land being claimed by the petitioner is plot no.38, is also being claimed by the present respondent as plot no.26. Plot no.38 is stated to be in survey No.22/3 and plot no.26 is also to be stated in from very same survey number. It appears that the T.I.L.R. Authorities have earlier undertaken on 09.06.2009 the measurement of plot no.39, in same survey number shown there as 38 and that document is already exhibited on record of the Civil Suit. The question is, whether with reference to that document and other records relating to survey numbers the office of the T.I.L.R. can demarcate or identify the properties involved in dispute. As the office of T.I.L.R. has already undertaken one measurement, it is apparent that the finding as to the contrary reached by the 4 trial Court, without hearing the T.I.L.R. is misconceived and unsustainable. The trial Court has gone by its own impressions and findings recorded by it in paragraph no.7 practically tend to dismiss the suit as filed. In view of this finding, the judgment on which reliance is being placed by Shri Khajanchi, learned counsel is not relevant at least now for present purpose. The impugned order dated 30.07.2010 passed below Exh.94 is quashed and set aside. The prayer made therein is allowed. The trial Court shall appoint T.I.L.R. for measurement as sought for in Exh.94. The Trial Court shall see that the report of T.I.L.R. is received by 30.11.2010. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd.