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SANDEEP V. MARNE
Dinanath Supdu Joshi Died through his Legal Heirs Sharda Wd/o Dinanath Joshi – Appellant
Versus
Shriram S/o Shrikrushna Dautkhane – Respondent
JUDGMENT :
Rule. Rule is made returnable forthwith. With the consent of parties taken up for final hearing.
2. By this petition, petitioner challenges order dated 12th August, 2022 passed by the 02nd Joint Civil Judge Senior Division, Nandurbar allowing application of the defendant No. 1/respondent No. 1 for appointment of Court Commissioner for measurement of plot Nos. 23 and 24 at Survey No. 284, Shanti Nagar, Nandurbar. Application was moved by the defendant No. 1 in the suit filed by the plaintiff/petitioner. The suit is filed by plaintiff seeking injunction against the defendant No. 1 from encroaching upon common road in the colony and for removal of unauthorized construction. Municipal Council is also arrayed as defendant No. 2 to the suit. The defendant No. 1 has filed counter claim alleging encroachment by plaintiff and a prayer is made for measurement of Plot Nos. 23 and 24 and for removal of encroachment allegedly committed by plaintiff. An additional prayer is made for construction of road by defendant No. 2 between plot Nos. 23 and 24. Plaintiff has filed application for temporary injunction to restrain defendant No. 1 from encroaching upon the common road, which is pendi
The main legal point established in the judgment is that a Court Commissioner cannot be appointed to enable parties to collect evidence, and the burden of proving encroachment rests on the party alle....
The court established that the appointment of a Court Commissioner under Order XXVI Rule 9 CPC should follow the presentation of evidence by the parties, not precede it.
(1) Court is empowered to appoint another Court Commissioner and there is no question of attracting principle of res judicata.(2) Production of additional evidence – Appellate Court can even direct e....
The appointment of a Civil Court Commissioner under Order XXVI Rule 9 is essential in boundary disputes to ascertain possession and clarify any allegations of encroachment.
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