The trial Court's discretion to appoint a Court Commissioner under Order XXVI, Rule 9 of CPC in cases involving boundary disputes and the importance of a duly drawn measurement plan/map in such suits.

JUDGMENT

Nitin B. Suryawanshi, J. - Rule. Rule made returnable forthwith. Heard finally with the consent of the learned advocates for the parties.

2. The petitioner is aggrieved by the Order passed by the learned 9th Joint Civil Judge, Senior Division, aurangabad, below application Exhibit-16 dated 28.02.2020 in Regular Civil Suit No. 886 of 2018, thereby allowing the application filed by the respondent-plaintiff for appointment of Taluka Inspector of Land Records as a Court Commissioner.

3. The respondent - original plaintiff filed the suit for permanent injunction against the petitioner-defendant in respect of land Gat No. 29 admeasuring 3 Hector 14 R, to the extent of

4. 5 R situated at village Itkheda, Taluka and District aurangabad, bounded by -

Towards East : Remaining land of Gat No. 28

Towards West : Remaining land of Gat No. 29

Towards South : Remaining land of Gat No. 29

Towards North : Land of Gat No. 47

. The petitioner - original defendant resisted the suit contending that the boundaries are wrong and the suit property is not in existence. He also denied the measurement carried out by the respondent-plaintiff on 14.08.2018 through cadastral surveyor.

. The respondent - plaintiff, thereafter, filed application Exhibit-16, under Order XXVI, Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (here-in-after, 'the CPC'), for appointment of T.I.L.R. as a Court Commissioner for measurement of the suit land. The petitioner - defendant resisted the said application. The trial Court has allowed the application. Hence, the present petition.

4. Heard the learned advocate for the petitioner and the learned advocate for the respondent.

5. The learned advocate for the petitioner assailed the impugned order contending that the application is filed at a premature stage and the trial Court has erred in allowing the same. according to him, the burden is on the plaintiff to prove prima facie case and then if necessary, the Commissioner can be appointed.

. By relying on the decisions

(i) Gangaram Baban Tagad and others Versus Sarubai Yashwant Tagad and others (Writ Petition No. 6700 of 2011),

(ii) Chandrakant Kashinath Dike and others Versus Smt. Satabhama Vishwanath Dike and another, (Writ Petition No. 8877 of 2013),

(iii) Dnyandeo Vithal Salke and others Versus Dagadu Kadar Inamdar (2017 (3) Mh.L.J. 314),

(iv) Sanjay Kisan Thorat and others Versus Ramchandra Parsu Thorat and another, (2018 (2) Mh.L.J. 954),

(v) arjun Rambhau Dhankude and another Versus Bhanudas Ramchandra Murkute and others, [(2020) 2 Mah L. J. 145],

(vi) Dhondiba s/o. Bapu Zaware Versus Santosh s/o. Paraji Zawere and others (Writ Petition No. 4756 of 2014),

(vii) Ramkrishna Santu Kakad Versus Reojee Sahadu Kakad and another (Writ Petition No. 2749 of 2012).

He submitted that the impugned order is unsustainable and same may be quashed and set-aside.

6. Per contra, the learned advocate for the respondent supported the impugned order by relying on decisions -

(i) Raghunath Kashinath Chavan Versus Sakharam Maroti Chavan (Second appeal No. 562 of 2005 [aurangabad]),

(ii) Shri Saunsthan Gokarn Partagal Jivottam Mutt Versus Shri Narayan Raghunath Dessi and others (2019 (2) all MR 588).

7. It is not disputed that the respondent - plaintiff has given description of the suit property along with the boundaries in the plaint. The petitioner-defendant has disputed the boundaries and denied the very existence of the suit property. The measurement carried out by the respondent - plaintiff through cadastral surveyor on 14.08.2018 is also denied by the petitioner - defendant. The application Exhibit-5 filed by the respondent - plaintiff for temporary injunction is already rejected by the trial Court. It appears that many litigations including criminal complaint are going on between the plaintiff and the defendant. The trial Court has recorded a finding that for deciding the suit on merit, it is necessary to carry out measurement of the suit property along with other properties to trace out