1. This appeal is against judgment and order dated 14-6-2013 passed by learned Ad hoc District Judge-2, Buldana in Regular Civil Appeal No. 56 of 2010. Learned 1st Appellate Court after finding that the plaintiff was owner and entitled to possession of suit land, came to a conclusion that that appeal needed to be partly allowed so as to declare plaintiff as owner of the disputed land, entitled to possession and cultivation over it. In paragraph 47 of the impugned judgment and order, after 1st Appellate Court found that this is a boundary dispute between the parties, made reference to settled legal position in this regard and concluded that it is just and proper to get the suit land viz. survey number 1/1B and 1/A situated at village Hiwarkhed, Tahsil Mehkar, District Buldana. Measured through Taluqa Inspector of Land Records (TILR) as court commissioner so that on determination of boundaries, boundary dispute between the parties shall be finally and conclusively settled.

2. It may be noted that in Regular Civil Suit No. 76 of 2006, decided by learned Civil Judge, JD, Mehkar, District Buldana, the trial Court found that plaintiff did not prove that he became owner of the suit land as a result of partition dated 25-3-1976 and came in possession of suit land. The trial Court also negatived the alleged encroachment made by the defendant on western side of the suit land to the extent of 52 R. Thus, the suit was dismissed as the plaintiff was unable to prove encroachment in respect of the suit land.

3. It appears that in appeal, 1st Appellate Court after considering the facts, found that the plaintiff is owner of the suit land and is entitled to peaceful possession and cultivation thereof. However, considering the boundary dispute involved, learned 1st Appellate Court made reference to the ruling in Kisanlal Maniklal Rathi v. Dinkar Yashwant Patil, reported in 2004 (1) Mh. LJ. 138 as well as rulings in Ashatai Warekar v. Champatrao Kale, reported in 2011 (6) AIR (BR) 351 and Vijay Shende v. State of Maharashtra, reported in 2009 (5) Mh. LJ. 279. In such cases, when there is a boundary dispute or dispute about identity about the suit property, this Court has time and again considered necessity to appoint TILR or DILR concerned as court commissioner and to take measurement of the disputed land so that factum of encroachment, if any, is brought to the notice of the court by properly drawn measurement map so as to conclusively and finally determine the real controversy between the parties. In such cases, the objection raised that Court Commissioner cannot be appointed for to collect evidence to investigate as to who is in possession of suit field/premises, was upheld inNalubai Narayan Shinde v. Gopinath Dagdu Shinde, reported in 2011 (2) Mh. L.J. 991 in the light of different facts. It appears that the learned single Judge of this Court was considering the order passed by the Jt. Civil Judge, JD, Ahmednagar regarding appointment of the court commissioner under Order XXVI, Rule 9 of the Code of Civil Procedure in which the court commissioner was appointed to visit the spot in question to investigate factum of possession and to submit report in respect of possession of the suit property. In that context, learned single Judge of this Court held that no commissioner can be appointed “to collect evidence” of such nature. Learned single Judge of this Court was not dealing with the boundary dispute regarding boundaries of the property in a suit for removal of encroachment and consequential relief. The principle stated in the ruling was in relation to the order particularly impugned in that case cannot be extended to cases where the Court finds that an agreed map or plan between the parties to the suit is necessary so as to pass a meaningful and effective decree to end the real controversy between the parties finally and conclusively and also to facilitate execution of the decree in cases where parties disputed boundaries in respect of th