The main legal point established in the judgment is that the rejection of an application for appointment of a Court Commissioner for fresh measurement may be justified if the suit property has already been measured and a map drawn, and if there is no counter claim and the previous measurement has been scrutinized.

Ravindra V. Ghuge, J.

1. Heard the learned Advocates for the respective sides for quite some time. Rule. Rule made returnable forthwith by consent of the parties.

2. The petitioners are the original defendants. RCS No. 361 of 2009 was filed by the respondent/plaintiff for recovery of possession of the encroached land, which is pending before the Trial Court. A T.I.L.R. had earlier carried out the measurement of the suit land on 18/08/2009 and had drawn a map based on the said measurement, in the presence of both the parties, which was placed on record in the suit. The respondent/plaintiff has led oral evidence and the same has accordingly been recorded. The evidence of the plaintiff/respondent is now closed and the stage is for the defendants to step into the witness box. The petitioners had cross-examined the T.I.L.R. on his measurement report dated 25/08/2009 and the map.

3. An application dated 11/09/2013 was filed by the petitioners seeking appointment of a Court Commissioner for carrying out a fresh measurement of the suit property and drawing a map accordingly. By submitting its say on 28/10/2013, the respondent opposed the application. By the impugned order dated 21/01/2014, the said application came to be rejected.

4. The petitioners contend that the impugned order does not reflect any reasons. The same is a cryptic order. The Trial Court has failed to apply its mind to the application filed by the petitioners and therefore the impugned order be quashed and set aside.

5. Reliance is placed upon the reported judgments of this Court as follow:-

(a) Bento Antonio Gomes alias Antonio Bento Gomes vs. Rosario Salvador Carneiro and others, 2014(4) Mh. L.J. 366

(b) Siddharth Sambhaji Survase and another vs. Air India Charters Ltd. 2014(4) Mh. L.J. 374

(c) Manikrao Ramji Chawake vs. Ashok Ambadas Gawande and another, 2014(2) Mh. L.J. 840

(d) Prerna Shikshan Mandal, Chandrapur and another vs. State of Maharashtra and others, 2014 (2) Mh. L.J. 843

(e) Bhupendra S/o Bhagwat Turkar vs. Homraj S/o Zituji Meshram, 2014(4) Mh. L.J. 231

(f) Indira Pragati Shikshan Sanstha, Mindala, Chandrapur vs. State of Maharashtra and others, 2014(4) Mh. L.J. 235

(g) Malhar S/o Ganpat Bokerphod and others vs. Shivaji S/o Vishwanath Pawal, 2014(4) Mh. L.J. 237

(h) Kashinath Chindhuji Shastri vs. Haribhau Nathuji Bawanthade, 2004(2) Mh. L.J. 724

(i) Habibkhan S/o Inauttalakhan and others vs. Waman S/o Govind Rathod and others, 2012(2) Mh. L.J. 541

(j) Haryana Waqf Board vs. Shanti Sarup and others, 2008(8) SCC 671

(Supreme Court of India)

6. Mr. Dighe, learned Advocate appearing on behalf of the respondent submits that the suit filed by the respondent/plaintiff is not opposed by filing a counter claim by the petitioners/defendants. The T.I.L.R. who is a Revenue Officer, has already carried out a measurement and has accordingly drawn a map. These documents have been placed on record and the petitioners are in receipt of the same.

7. The respondent/plaintiff led evidence and examined the T.I.L.R. as well. The petitioners have cross examined the T.I.L.R. at length. The petitioners are now to lead oral evidence by stepping into the witness box. The application filed before the Trial Court neither sets out any specific reason as to why a Court Commissioner needs to be appointed nor does it justify the contentions of the petitioners that the report and map produced by the T.I.L.R. are not trustworthy.

8. The respondent, in its reply, has categorically pointed out that the petitioners have not pleaded about any counter claim in its written statement as well as no independent counter claim has been placed on record. When the boundaries and the suit property have already been measured and a map has been drawn, the application was rightly rejected. Cross-examination conducted by the petitioners thereby putting the T.I.L.R.'s testimony to scrutiny, also supports the rejection of the application.

9. The judgments cited by the learned Advocate for