( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6674 OF 2008 Dr. Suhalal s/o Pratap Patil PETITIONER VERSUS Lotan s/o Dhudku Sonwane, Since deceased, by L.Rs. Prakash s/o Lotan Sonwane RESPONDENT ..... Mr. P.B. Patil, advocate for the petitioner. Mr. U.S. Malte, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 17th July, 2009] PER COURT : 1. This petition is preferred by the original plaintiff. He filed suit (R.C.S. No. 78/1998) for mandatory injunction to the effect that a temporary construction (tapri) raised by the defendant on municipal drainage in front of his house shall be dismantled. He asserted that the said tapri is erected ( 2 ) outside his house property bearing city survey No. 2611 (B) and 2612 (A). According to him, the defendant runs unauthorized hair-cutting salon in the said tapri. The tapri is erected in such a way that his right of egress and ingress to the house property is materially affected. In other words, basically, claim of the petitioner is that his right of easement is impaired due to the construction of unauthorized tapri. He submitted an application for appointment of Court Commissioner while the suit was pending before the trial Court. It appears, however, that the said application was not pressed into service and remained unattended. The application (Exh-35) was kept pending without any order. The suit was dismissed. The petitioner has preferred appeal bearing R.C.A. No. 3/2004 in the Court of Adhoc District Judge, Amalner. In his suit, he again submitted application under Order-XXXIX Rul-7 of the Code of Civil Procedure vide Exh-26. It came to be rejected. The writ petition No. 1155/2008 preferred by him also came to be dismissed, with liberty to apply afresh in accordance with law. He thereafter filed further application for appointment of Court ( 3 ) Commissioner under Order-XXVI Rule-9 of the Code of Civil Procedure. That application is rejected. 3. Heard learned counsel. 4. It is pertinent to note that in the meanwhile, the petitioner had got the property measured. A map is also drawn by the concerned City Survey Officer and copy thereof is placed on record vide list (Exh-48). The measurement was effected on 02-01-1999. The measurement map indicates location of the disputed tapri. The petitioner did not dispute the correctness of the said measurement map, nor it is his case that the location of the tapri is at any other place. The petitioner is at liberty to seek leave of the learned Adhoc District Judge for examination of the City Survey Officer in order to prove the map of measurement. He cannot be denied the relief for appointment of Court Commissioner on the ground that already, there is a map drawn in respect of measurement and also cannot be simultaneously denied opportunity to examine such City Survey Officer. The learned advocate for the petitioner would submit ( 4 ) that if such permission is granted, then he would not press application for appointment of the Court Commissioner. 5. In the result, the writ petition is dismissed. The learned Adhoc District Judge may, however, consider the application of the petitioner for examination of the City Survey Officer in order to prove the measurement map, filed by him. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP6674-08