1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5269 OF 2009 Bhikulal s/o Bachhulal Jaisal, R/o-Nageshwarwadi, Aurangabad, Through his General Power of Attorney Shri Sanjay Bharatlal Jaiswal, R/o-Nageshwarwadi, Aurangabad. ...PETITIONER. VERSUS The Municipal Commissioner, Municipal Corporation, Town Hall, Aurangabad. ...RESPONDENT. ... Mr. B.S. Shinde Advocate for Petitioner. ... CORAM: K.K. TATED, J. DATE : 12TH AUGUST, 2009. PER COURT : 1. Heard learned counsel for the Petitioner. By this Petition under Article 227 of the Constitution of India, the Petitioner is challenging the order dated 9th July, 2009 passed by Civil Judge, Senior Division, Aurangabad below Exhibit 25 in Regular Civil Suit No.417 of 2008. Petitioner - original plaintiff filed Regular Civil Suit 2 No.417 of 2008 against Respondent - original defendant restraining them from demolishing the construction of the Petitioner over the Municipal House No. 280 and 282 situated at Mukundwadi, Aurangabad. In the said proceedings, the Respondent filed application under Order 26 Rule 9 of the Code of Civil Procedure for appointment of Court Commissioner for measuring the construction, location of the construction vis-a-vis the boundaries of the plots, extent of construction etc. on the suit properties. The said application came to be allowed by order dated 9th July, 2009. At the time of allowing the said application, the trial Court observed as under: "6. I have gone through the submissions made before me and evidence on record. It is contention of the defendant that the plaintiff has committed encroachment on public road but in order to prove the encroachment, it is necessary to measure the property. It is a fact that for collection of evidence, no commission can be appointed but by considering the controversy in this case, it will be just to get the House No.280 and 282 measured from the Court Commissioner." 3 2. Learned counsel for the Petitioner states that the Respondent indirectly wants to collect evidence on record through the Court Commissioner. In support of his submission, learned counsel for the Petitioner relies on the Authority in the matter of Sushila Dhanbaji Kadu vs. Birju Mangal Pache and others, reported in 2006 (5) Bom. C.R. Page 859. In this case the High Court held that it is not obligatory that in every case a Commissioner be appointed to ascertain position. Learned counsel for the Petitioner mainly relied on Para 9 of this Judgment, which reads thus: "9. It may be seen that the decision of the Nagpur High Court in form of a Note to which this Court had made reference speaks of the discretion of the Court to order local investigation and desirability to get the fields measured by an expert to find out the area encroached upon. It does not lay down inflexible rule of law that in every case when the plaintiff comes up with the claim of recovery of land encroached upon, the Court is obliged to appoint a Commissioner and get the lands measured. For, in doing so, the Court would be, first, taking over the job of the 4 parties to prove their own cases; secondly, entering into speculative area since the result of such measurement may be entirely unknown, which may not be in tune with the case set up by the parties; and lastly would amount to abdicating its function of assessing and evaluating the evidence tendered before it, by passing over the job of finding out whether there is encroachment to a cadastral surveyor. The desirability of having a map prepared by an independent agency to assist the Court cannot be undermined but it does not follow that the courts must, in all cases of encroachment, resort to the power of appointment of the Commissioner." 3. In the present case the Respondents filed application under Order 26 Rule 9 of the Code of Civil Procedure for measurement of the suit property only. It is the case of the Respondent that the Petitioner encroached on public road. In the matter of Kashinath s/o Ramkrishna Chopade vs. Purushottam Tulshiram Tekade and others, reported in 2005 (4) ALL M.R. Page 519, this High Court held that in order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area 5 encroached upon. Oral evidence cannot conclusively prove such an issue. Head Note B of the said Authority reads thus: "(B) Civil P.C. (1908), O.26, R.9 - Encroachment - Power of Court to order local investigation - Court has the discretion to order local investigation or not - In order to determine whether there has been an encroachment, it is always desirable to get the fields measured by an expert and find out the area encroached upon. Oral evidence cannot conclusively prove such an issue." 4. In the present case, the trial Court appointed the T.I.L.R. Aurangabad as Court Commissioner for measurement of House No.280 and 282. I do not find any substance in the present Writ Petition because, to find out the exact area of the suit property it is necessary to appoint some expert person. Therefore, the present Writ Petition is dismissed summarily with no order as to the costs. [K.K. TATED, J.] asb/JULY09/wp5269.09