1 W.P.No.9240/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.9240 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.P.S.Agrawal, advocate for the petitioners. CORAM : S.V.GANGAPURWALA,J. Date : 08.12.2011. PER COURT : 1. Heard. 2. The petitioner is the original defendant. The present Respondent had filed a suit for simpliciter injunction restraining the petitioner from interfering in possession of land Gat No.77, admeasuring 90 ares. During pendency of the suit, the petitioner filed an application for appointment of Court Commissioner for the purpose of inspecting the spot i.e. the suit land and whether there is specific identification marks. The said application is rejected. Aggrieved thereby, the present petition is filed. 3. Mr.Agrawal, learned counsel for the petitioner contends that in fact, even the plaintiff had applied for measurement to the SLR and the SLR could not measure the land as there were no boundary marks and the property could not be identified. In view of that the 2 W.P.No.9240/11 appointment of Court Commissioner was necessary, more particularly, to report regarding non-availability of the identification mark boundaries. The learned counsel contends that the appointment of Commissioner would facilitate the just decision of the dispute between the parties. According to the learned counsel, Order 26 Rule 9 read with Section 75 of the C.P.C., authorises the Court to appoint Commissioner for effective adjudication of the dispute. 4. It is a trite law that Commissioner can not be appointed to collect evidence. The application is not for measurement of the properties of the plaintiff and the defendant with regard to fixation of boundaries but the application was made merely to inspect the suit property. For the said purpose, there is no need to appoint Commissioner. Moreover, the petitioner is a defendant, it is for the plaintiff to prove his case as put forth by him. The plaintiff will have to prove his possession over the area of the land as contended by him. 5. In light of the above, the order impugned, can not be faulted with and as such the Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.08.12.2011. asp/office/wp9240.11 3 W.P.No.9240/11