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 alleging it.

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 pending. Defendant No. 1 has not filed application in his counter claim seeking any temporary injunction against the plaintiff.

3. During the pendency of application for temporary injunction filed by plaintiff, defendant No. 1 filed application dated 03rd March, 2021 for appointment of Court Commissioner for measurement of plot Nos. 23 and 24 alleging that plaintiff has committed encroachment upon the road and that by ignoring encroachment committed by the plaintiff, the Municipal Council has attempted to construct a road in plot No. 24 belonging to the defendant No. 1. Application was resisted by the plaintiff. By order dated 12th August, 2022, the application has been allowed directing the Deputy Superintendent of Land Records, Nandurbar to measure Plot Nos. 23 and 24 and to fix boundary marks and to verify whether there is any encroachment over 30 feet road. The Deputy Superintendent of Land Records has also been granted liberty to carry out measurement of entire Survey No. 284 to determine exact encroachment in respect of Plot Nos. 23 and 24. Plaintiff has challenged the order dated 12.08.2022 in the present petition.

4. I have heard learned counsels appearing for the parties and have perused records of the case.

5. In the present case, application for appointment of Court Commissioner for measurement of land has been filed by the defendant No. 1 during pendency of application for temporary injunction filed by Plaintiff. Mr. Wani, the learned counsel appearing for the defendant No. 1/Petitioner strenuously submits that the report of the Court Commissioner would bring on record the real picture on the site about the encroachment, if any, committed by both the parties and the same would assist the Court in deciding application for temporary injunction.

6. In support of his contention Mr. Wani has relied upon following judgments :

I. Kishore H. Desai Vs. Lilawati Virji Chheda and others reported in 1993 Mh.L.J. 1155.

II. Balkrishna Gangabishaji Zawar Vs. Azmat Khan Suban Khan dated 27.09.2016 in Writ Petition No. 8608 of 2012.

III. Lalitprabha Krishnaji Ajgaonkar Vs. Yunus Khan reported in (2017) 1 Bom CR 179.

IV. Kalyan Santram Kawade and others Vs. Khanderao @ Khandu Ganpati Kawade reported in 2015(4) Mh.L.J. 429.

V. Dattatray Namdev Kalake Vs. Bapu Bhairu Bhivungade and others reported in 2015(1) Mh.L.J. 892.

7. Per contra, Mr. Mane learned counsel appearing or the petitioner on the other hand submits that attempt on the part of the defendant No. 1 to measure the land at this stage amounts to collection of evidence. He would contend that Court Commissioner cannot be appointed for collection of evidence.

8. The issue about the stage at which Court Commissioner can be appointed for measurement of land under the provisions of Section 75 r/w Order 26 Rule 9 of the C