1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION WRIT PETITION NO. 6927 OF 2009 Yogiraj s/o. Tukaram Fartade and others. .. petitioners Versus Bhanudas s/o. Dashrath Fartade and others. .. Respondent. --- Mr. R.A. Tambe, Advocate for petitioner. CORAM : B.R. GAVAI, J. DATE : 4th November, 2009. ORAL ORDER :- 1] By way of present petition, the petitioners/original defendants have challenged the order dated 4th September, 2009, passed by the learned Civil Judge (J.D.), Karjat, thereby rejecting the application filed by the present petitioners for appointment of Court Commissioner. 2 2] The respondents/plaintiffs filed a suit bearing R.C.S. No. 128/2009 for permanent injunction against the petitioners. It is the allegation of the plaintiffs that they are having a right of way to go to their houses through the fields of the present petitioners. 3] The suit is resisted by the defendants by filing a written statement. It is contended that there is no such road and on the contrary, there is one another road, which is being used by all the persons for going to the field. In this background, the present petitioners filed application for appointment of Court Commissioner, to find out as to whether, there is, in fact, a way as alleged by the plaintiffs or as to whether there is an alternate way available, as alleged by the defendants. The said application is rejected. Hence, the present petition. 4] Shri Tambe, learned counsel appearing for the petitioner submits that the learned trial court has grossly erred in rejecting the application. He submits that, as a matter of fact, there is no way as alleged by the plaintiffs and there are standing crops on the alleged way. He submits that for finding out the actual position, it was necessary that the suit site is inspected by a court Commissioner. 5] The learned trial court, vide the impugned order has found that it is for the plaintiffs to establish that they are having a way, as alleged by 3 them and it is for the defendants to prove that there is an alternate way, as alleged by them. The trial court has given sound and cogent reasons while arriving at a finding that the appointment of court commissioner was not necessary. The jurisdiction under Order 29 Rule 6 of C.P.C. Is a discretionary jurisdiction. Unless it is found that the said jurisdiction has been exercised in a perverse manner, it is not permissible for this court to sit in appeal over the order passed by the learned trial court. 7] No perversity could be found with the approach adopted by the learned trial court so as to warrant interference. Hence, the writ petition is summarily rejected. [B.R. GAVAI,J.] Grt/-