The main legal point established in the judgment is the appropriateness of appointing a Commissioner under Order 26, Rule 9 of Civil Procedure Code for cases of boundary dispute and to determine encroachment.

Heard Shri Patwardhan, learned counsel for the petitioners Shri Vaidya, learned counsel for the respondent. Rule. Rule is made returnable forthwith with the consent of the parties.

2. This is a petition filed seeking to quash and set aside the order dated 18.7.2008 passed by the learned Civil Judge, Junior Division, Kalmeshwar, in Regular Civil Suit No. 110 of 2004, whereby the Commissioner was appointed under Order 26, Rule 9 of Civil Procedure Code. It is the case of the petitioners that the respondent has filed a suit against the petitioners for restoration of possession and recovery of damages and to remove the encroachment and to place the respondent in vacant possession of the suit field as prayed for in the suit. The petitioners filed their written statement disputing the claim of the respondent as well as his contention that they had encroached upon his property. During the course of the proceedings, the respondent filed an application under Order 26, Rule 10A of Civil Procedure Code read with Section 151 of Civil Procedure Code, stating that there is a dispute regarding the area and boundary of the field of the respondent and as such it was necessary to appoint an expert Commissioner to investigate and ascertain the boundaries in respect of field of the petitioners as well as the respondent as per records and title deeds of the respective parties. The petitioners opposed the said application filed by the respondent by filing their reply and contended that in case such an application is allowed, it would amount to allowing the Commissioner to collect the evidence. By order dated 18.7.2008, the learned Civil Judge, Junior Division, Kalmeshwar, allowed the said application and appointed T.I.L.R., Kalmeshwar, as a Court Commissioner to measure the lands i.e. field survey No. 175 and field survey No. 41 situated within the local limits of Mouza – Nimji, P.H. No. 23, Tahsil – Kalmeshwar, District – Nagpur, and to carry out joint measurement of the land at the earliest on payment of requisite expenses. The said order passed by the learned Judge is sought to be impugned in the present petition.

During the course of the arguments, the learned counsel appearing for the petitioners urged before me that the learned Judge has exceeded his jurisdiction while passing the impugned order inasmuch as by such order, it would amount to collecting evidence for the respondent. In support of his submissions, he has relied upon the judgment of this Court in the case of Sanjay N. Khandare vs. Sahebrao K. Khandare, reported at 2001 (1) Bom. C.R. 800.

3. On the other hand, the learned counsel for the respondent urged that the present application has been filed not for the purpose of collecting any evidence but on the contrary for considering the matter in proper perspective in order to facilitate the Court to decide the controversy considering the fact that the petitioners and the respondent are claiming rights to different survey numbers and joint measurements would be feasible to demarcate the boundary between the properties claimed by the petitioners and the respondent.

4. Having heard the learned counsel for the parties and on perusal of the impugned order, I feel that there is no jurisdictional error committed by the learned Judge while passing the impugned order. The judgment relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case inasmuch as in the case in the said judgment, the Court Commissioner was appointed for the purpose of ascertaining who is in possession of the property in dispute. In such facts, this Court held that a Court Commissioner cannot be appointed to ascertain who is in actual possession of the suit field. The purpose of appointment of the Commissioner is totally different in the present case. The Court Commissioner has been appointed for the specific purpose as stated in the impugned order viz., to measure the lands claimed by the respondent and the petitione